United States District Court, D. New Hampshire
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.
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.
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) (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)).
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
(doc. no. 15), which is part of the court's record and
will be summarized here, rather than repeated in full.
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.
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”) 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).
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'
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
in April 2015, Dr. Frank Graf reviewed Edwards' medical
records,  gave her an orthopedic consultative
examination, and wrote a report on the
examination. In his report, he made the following
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
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. 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.
at the November 10, 2015, hearing on Edwards'
applications,  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
[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, ”
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 ...