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Coutu v. Berryhill

United States District Court, D. New Hampshire

March 13, 2018

Deborah May Coutu
Nancy A. Berryhill, Acting Commissioner, Social Security Administration


          Joseph Laplante United States District Judge.

         Pursuant 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.

         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). 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)).

         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. That statement[1] is part of the court's record and will be summarized here, rather than repeated in full.

         In 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 capacity.
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 store.
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.

         Administrative Transcript (hereinafter "Tr.") 250.

         In 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.

         The 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 ("RFC").[2]

         In 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.

         The 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.

         After 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 ...

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