United States District Court, D. New Hampshire
Laplante United States District Judge.
to 42 U.S.C. § 405(g), Deborah Coutu moves to reverse
the Acting Commissioner's decision to deny her
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 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). 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)).
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 is part of the court's record and will
be summarized here, rather than repeated in full.
November of 2013, while Coutu was employed as a supervisor by
CVS Pharmacy, she suffered a stroke, and upon admission to
the hospital, she was also diagnosed with migraine headaches
and cardiovascular risk factors of diabetes and
hyperlipidemia. She was out of work from the date of her
stroke until some time in February of 2014. In September of
2015, John Ingalls of CVS wrote a letter in which he
described Coutu's return to work:
I have worked with Ms. Coutu as her Manager at CVS prior to
her stroke in November 2013 and after the stroke when she
attempted to return to work on a full-time basis in her prior
position as Supervisor. She was unable to perform her
supervisory duties and was demoted to a part-time Cashier in
an effort to continue her employment with the company in some
Unfortunately, memory problems, anxiousness, dizzy spells
[requiring her to lie down] inability to complete tasks and
deal with stressful situations necessitated her transfer to a
lower volume store where she could not even maintain a
part-time schedule of 15 hours per week. Presently, she is
working a few hours, one day per week in a low volume drug
We have provided Ms. Coutu an opportunity to work despite her
medical conditions. Unlike all other part-time cashiers, she
is not required to rotate to various stores as staffing
requirements demand. In my opinion, Ms. Coutu would not be
able to adjust to a changing work setting whether it be the
specific duties she is required to complete or a different
store than the one she is used to.
Transcript (hereinafter "Tr.") 250.
December of 2013, approximately one month after her stroke,
Coutu applied to the Social Security Administration
("SSA") for disability insurance benefits. She
claimed that she was disabled as a result of her stroke,
diabetes, arthritis, and depression.
SSA, in turn, referred Coutu to a psychologist for a
consultative examination in March of 2014. However, because
the resolution of this case does not hinge on the effects of
Coutu's mental impairment, there is no need to describe
in detail the results of her psychological examination or the
state-agency psychological consultant's assessment of her
mental residual functional capacity
April of 2014, a non-examining state-agency physician, Dr.
Jonathan Jaffe, assessed Coutu's physical RFC. He
determined that she could occasionally lift/carry 20 pounds,
frequently lift/carry 10 pounds, and push/pull the same
amount of weight that she could lift/carry. He also found
that she could both stand/walk and sit (with normal breaks)
for about six hours in an eight-hour workday. With regard to
postural activities, Dr. Jaffe found that Coutu could
occasionally climb ramps/stairs, balance, stoop, crouch, and
crawl, but could never climb ladders/ropes/scaffolds. He also
found that Coutu had no environmental limitations other than
a need to avoid even moderate exposure to hazards such as
machinery and heights. Finally, Dr. Jaffe found that Coutu
had no manipulative, visual, or communicative limitations.
month after her stroke, i.e., in December of 2013,
Coutu began treating with a neurologist, Dr. Khawaja Rahman.
In August of 2015, Dr. Rahman completed a Headaches Medical
Source Statement in which he indicated that Coutu suffered
from moderate migraine headaches that produced the following
signs and symptoms: nausea, mental confusion, inability to
concentrate, exhaustion, and increasing pain with activity.
With regard to Coutu's capacity for work, Dr. Rahman
opined that she would need to take unscheduled breaks and lie
down every day, that she would be off task at least 25
percent of the time, and that she was likely to be absent
from work due to her migraines about three days per month.
the SSA denied Coutu's application at the initial level,
she received a hearing before an Administrative Law Judge
("ALJ"). At the hearing, the ALJ posed several
hypothetical questions to a vocational expert
("VE"). First, he asked the VE what jobs could be
performed by a person with the following characteristics:
[A]ssume that we have a 63 year old [who was] then 61 year[s]
old with a 12[th] grade education and the claimant's work
history, has the ability to lift 20 pounds occasionally, 10
pounds frequently, can stand or walk for six hours, sit for
six hours, unlimited use for hands and feet to operate
controls to push and pull, should never climb ladders,
scaffolds, or ropes. The remaining postural are already at
occasional and she should avoid unprotected heights. And I
would add to that that she [can] handle, understand, and
remember and carry out one to three step instructions during
the typical two hour periods of a normal eight hour work ...