United States District Court, D. New Hampshire
McCafferty United States District Judge.
Palombo seeks judicial review, pursuant to 42 U.S.C.
§§ 405(g) & 1383(c)(3), of the decision of the
Acting Commissioner of the Social Security Administration,
denying her application for disability insurance and
Supplemental Security Income benefits. Palombo moves to
reverse the Acting Commissioner's decision, and the
Acting Commissioner moves to affirm. Separately, Palombo
moves for leave to file a response to the Acting
Commissioner's surreply and requests clarification of the
local rules with regard to social security disability cases.
The court addresses the latter issue first, before evaluating
the merits of Palombo's appeal. For the reasons discussed
below, Palombo's motion for leave to file a response is
denied, Palombo's motion to reverse is granted in part,
and the Acting Commissioner's motion to affirm is granted
Motion for Leave to File Response to Surreply
April 4, 2018, Palombo filed a reply to the Acting
Commissioner's motion for an order affirming her
decision. See doc. no. 20. On April 9, 2018, the
Acting Commissioner filed a surreply. See doc. no.
than a month later, on May 14, 2018, Palombo filed a motion
for leave to file a response to the Acting Commissioner's
surreply. See doc. no. 23. In addition to requesting
leave to file a response, Palombo's motion asks the court
to "expressly clarify" that under Local Rule 9.1,
the Acting Commissioner is prohibited from filing a surreply
without first seeking leave of the court. Id. at 2.
Palombo requests that the court either allow her to file her
proposed response to the Acting Commissioner's surreply
or strike the surreply.
Rule 9.1, which governs social security disability cases,
provides: "The plaintiff may file a reply memorandum
pursuant to LR 7.1(e)(1). Neither party shall otherwise be
required to file an objection to the other party's
motion."Local Rule 7.1(e)(3) provides: "If a
reply has been filed either as of right pursuant to LR
7.1(e)(1) or by court order under LR 7.1(e)(2), a surreply
may be filed within five (5) days of the date the reply was
filed." In other words, once a party files a reply
pursuant to Local Rule 7.1(e)(1), the other party may file a
surreply within five days without seeking leave from the
all of these provisions, the Acting Commissioner is allowed
to file a surreply without requesting the court's
permission, and the surreply need not be stricken.
Furthermore, Palombo cites no authority that would allow her
to file a response to the Acting Commissioner's surreply.
Accordingly, Palombo's motion is denied.
Standard of Review
reviewing the final decision of the Acting Commissioner in a
social security case, the court "is limited to
determining whether the ALJ deployed the proper legal
standards and found facts upon the proper quantum of
evidence." Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d
1, 9 (1st Cir. 2001). The court defers to the ALJ's
factual findings as long as they are supported by substantial
evidence. 42 U.S.C. § 405(g); see also Fischer v.
Colvin, 831 F.3d 31, 34 (1st Cir. 2016).
"Substantial evidence is more than a scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Astralis Condo.
Ass'n v. Sec'y Dep't of Housing & Urban
Dev., 620 F.3d 62, 66 (1st Cir. 2010).
determining whether a claimant is disabled, the ALJ follows a
five-step sequential analysis. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The claimant "has the
burden of production and proof at the first four steps of the
process." Freeman v. Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). The first three steps are (1)
determining whether the claimant is engaged in substantial
gainful activity; (2) determining whether she has a severe
impairment; and (3) determining whether the impairment meets
or equals a listed impairment. 20 C.F.R. §§
404.1520(a) (4) (i)-(iii), 416.920 (a) (4) (i)- (iii) .
fourth step of the sequential analysis, the ALJ assesses the
claimant's residual functional capacity
("RFC"), which is a determination of the most a
person can do in a work setting despite her limitations
caused by impairments, id. §§ 404.1545(a)
(1), 416.945(a) (1), and her past relevant work, see
Id. §§ 404.1520 (a) (4) (iv),
416.920(a)(4)(iv). If the claimant can perform her past
relevant work, the ALJ will find that the claimant is not
disabled. See id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant cannot perform her past
relevant work, the ALJ proceeds to Step Five, in which the
ALJ has the burden of showing that jobs exist in the economy
which the claimant can do in light of the RFC assessment.
See id. §§ 404.1520(a) (4) (v), 416.92
0(a) (4) (v) .
Palombo's second application for disability insurance and
Supplemental Security Income ("SSI") benefits.
Palombo filed her first application in February 2012. In the
first application, Palombo alleged disabilities of spurs and
deterioration of spine, arthritis, tendonitis, depression,
speech problems, knee issues, and obesity. The Social
Security Administration denied the first application on
initial review and, in December 2012, it denied the
application again on reconsideration. Palombo did not further
proceed with the first application.
year later, Palombo filed the present application, seeking
both disability insurance and SSI benefits. She alleged that
she was disabled because of depression, anxiety, spinal
stenosis of the back and neck, arthritis, and asthma. At the
time of her application, Palombo was 47 years old, had a high
school education, and had previously worked as a
telemarketer, short order cook, waitress, and factory
initial review, the Social Security Administration denied
both her request for disability insurance benefits and her
request for SSI benefits. As to the former, the agency
determined that, because Palombo's alleged onset date
(November 2011) was later than her date last ...