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Edwards v. Berryhill

United States District Court, D. New Hampshire

March 7, 2018

Jennifer Ruth Edwards
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          ORDER

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.

         Pursuant to 42 U.S.C. § 405(g), Jennifer Edwards moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny her 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 (doc. no. 15), which is part of the court's record and will be summarized here, rather than repeated in full.

         Edwards has been diagnosed with, and has received treatment for, a variety of physical and mental impairments. These include degenerative disc disease, for which she had two surgeries (in July 2009 and January 2014), and osteoarthritis in her left knee, for which she had a total knee replacement (in August 2013). It is sufficient to say that Edwards' treatment history is extensive. See Joint Statement (doc. no. 15) 1-16.

         Edwards first applied for DIB and SSI in February 2012, claiming that she had been disabled since June 6, 2009, as a result of failed lower back surgery, bipolar disorder, depression, and extreme anxiety. In April 2012, Edwards' physical residual functional capacity (“RFC”)[1] was assessed by a single decision maker (“SDM”), i.e., an SSA “employee with no medical credentials, ” Stratton v. Astrue, 987 F.Supp.2d 135, 138 n.3 (D.N.H. 2012) (quoting Goupil v. Barnhart, No. 03-34-P-H, 2003 WL 22466164, at *2 n.3 (D. Me. Oct. 31, 2003)). After reviewing Edwards' medical records, the SDM determined that she could lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk (with normal breaks) for a total of about two hours in an eight-hour workday, sit (with normal breaks) for about six hours in an eight-hour workday, and push and/or pull the same amount she could lift and/or carry. The SDM also determined that Edwards had no manipulative, visual, communicative, or environmental limitations, and could occasionally perform each of the postural activities (climbing ramps and stairs; climbing ladders, ropes, and scaffolds; balancing; stooping; kneeling; crouching; and crawling).

         In addition to the SDM's RFC assessment, the record also includes multiple statements from medical sources that touch on various aspects of Edwards' physical and mental RFC. Three of those statements are relevant to Edwards' appeal.

         First, in June 2013, Dr. Melissa Hanrahan, Edwards' treating physician since November 2005, completed a form that asked her to assess Edwards' non-exertional and/or psychological limitations.

         Second, in April 2015, Dr. Frank Graf reviewed Edwards' medical records, [2] gave her an orthopedic consultative examination, and wrote a report on the examination.[3] In his report, he made the following diagnosis:

Chronic lumbosacral pain, chronic regional pain syndrome, continued opiate dependency, failed laminotomy discectomy, and interbody fusion L5-S1 with chronic regional lumbosacral pain. Status post left total knee replacement with instability at the left knee and chronic atrophy of the left thigh; depression and bipolar disorder with no current suicidal or homicidal ideation, but past history of hospitalization.

Tr. 793.[4]

         In addition to writing a report, Dr. Graf also completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical). In it, he opined that Edwards could: lift up to 20 pounds occasionally, carry up to 10 pounds occasionally, sit for one hour at a time without interruption, stand for 30 minutes at a time without interruption and for 15-30 minutes total in an eight-hour workday, and walk for 20 minutes at a time without interruption and for 15 minutes total in an eight-hour workday.[5] He further stated that when Edwards was not sitting, standing, or walking, she needed to recline. He went on to opine that Edwards could never reach overhead with either hand, but could occasionally perform all other forms of reaching, and could perform handling, fingering, feeling, and pushing/pulling with either hand occasionally. He also opined that Edwards could occasionally use either foot to operate foot controls. With regard to postural activities, Dr. Graf opined that Edwards could never climb ladders or scaffolds, kneel, crouch, or crawl, but that she could occasionally climb stairs and ramps, balance, and stoop. He found no hearing or vision limitations. With respect to environmental limitations, he found that Edwards could never tolerate exposure to unprotected heights, moving mechanical parts, or vibrations, but could occasionally tolerate operating a motor vehicle, humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold, and extreme heat. Finally, Dr. Graf opined that Edwards could not travel without a companion for assistance, walk a block at a reasonable pace on rough or uneven surfaces, or use standard public transportation, but he also opined that she could perform six other activities of daily living.

         Third, at the November 10, 2015, hearing on Edwards' applications, [6] the Administrative Law Judge (“ALJ”) took testimony from Dr. John Kwock, a board certified orthopedic surgeon who reviewed Edwards' medical records but who had neither treated nor examined her. With respect to exertional limitations, Dr. Kwock gave the following testimony:

[I]t's my opinion that she is still capable of doing light work. That is to say she can lift and carry up to 10 pounds on a frequent basis, 11 to 20 pounds on an occasional basis, 21 to 50 pounds never. As far as sit, stand, walk is a concern, again, most of her back problem is limited to L4, 5, L5, S1 so although she still may have that irritation. It's my opinion that she still can sit for six out of the eight, that she can stand for four hours out of the eight and walk for two hours out of the eight. Posturals I believe are appropriate and the lower extremities climbing ramps and stairs occasional, climbing ladders, ropes and scaffolds, never, balancing, occasional, stooping occasional, kneeling, never, crouching, never, crawling, never, upper extremity posturals are reaching waist to chest continuous, reaching above shoulder occasional, handling, continuous, fingering continuous, feeling is continuous.

Tr. 113-14. Dr. Kwock identified two environmental limitations, i.e., a need to avoid “high exposed areas, ” Tr. 115, and a need to avoid “proximity to moving mechanical parts, ” id.

         After Edwards' hearing, the ALJ issued a decision that includes the following relevant findings of fact:

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that she could occasionally lift and carry up to twenty pounds and frequently lift and carry up to ten pounds; she could sit for a total of six hours out [of] an eight-hour day with normal breaks, stand for four hours out of an eight-hour day with normal breaks and walk for two hours out of an eight-hour day with normal breaks. Additionally, she could not climb ladders, ropes, or scaffolds and could not crawl, crouch or kneel. She could occasionally stoop, balance and climb stairs and ramps. She could occasionally reach overhead. She has no limitations on other manipulative activities. She would not be able to be exposed to unprotected heights and would have to avoid dangerous moving machinery. In ...

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