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Moffitt v. Berryhill

United States District Court, D. New Hampshire

September 5, 2018

Veronica E. Moffitt
Nancy A. Berryhill, Acting Commissioner, Social Security Administration


          Joseph N. Laplante United States District Judge.

         Pursuant to 42 U.S.C. § 405(g), Veronica Moffitt moves to reverse the Acting Commissioner's decision to deny her application 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, the decision of the Acting Commissioner, as announced by the Administrative Law Judge (“ALJ”) is affirmed.

         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. That statement, document no. 17, is part of the court's record and will be summarized here, rather than repeated in full.

         Moffitt first applied for DIB and SSI in May of 2012, claiming that since August 6, 2010, she had been disabled by a bad back, depression, anxiety, and carpal tunnel syndrome (“CTS”). Her applications were denied, and after a hearing in December of 2013, an ALJ issued an unfavorable decision. The Appeals Council remanded the case for another hearing, which Moffitt received in March of 2016. Among other things, the remand order directed the ALJ to obtain evidence from a vocational expert (“VE”). After Moffitt's second hearing, at which a VE testified, the ALJ issued a second unfavorable decision, which is the subject of this appeal.

         At the time of Moffitt's second unfavorable decision, she was 42 years old. She had a high school education and had taken some on-line college courses. She had past work experience as a machine operator, as a visual inspector/material handler, and as a cashier. She has been diagnosed with several physical ailments including the one that is the subject of one of her two claims in this appeal, carpal tunnel syndrome. For that condition, Moffitt had surgery on her right wrist in July of 2013. Medical findings related to Moffitt's CTS have generally been described as “mild.” The record includes a single medical opinion concerning Moffitt's physical residual functional capacity (“RFC”).[1] In August of 2012, a non-examining state-agency consultant, Dr. Hugh Fairley, opined that Moffitt had an unlimited capacity for three of four manipulative activities, reaching, fingering, and feeling, but was limited in her capacity for handling (gross manipulation), and he stated that she should “[a]void frequent bil[ateral] wrist manipulation.” Administrative Transcript (hereinafter “Tr.”) 98, 109.

         In February of 2014, an occupational therapist, Joan Van Saun, saw Moffitt and wrote a Functional Capacity Evaluation (“FCE”). Van Saun's FCE includes the following statements relevant to the limitations imposed by Moffitt's CTS:

Regarding work capacity, it is difficult to predict with accuracy work capacity of a patient with this profile, i.e. primarily subjective pain reports, some inconsistencies on testing . . . .
She does have diagnosed bilateral midcarpal instability and history of carpal tunnel syndrome, so it would be reasonable that she would not be able to perform jobs that required constant handling, such as her job as an assembly person did. . . .
She would probably be capable of work at Sedentary or Sedentary-Light physical demand level job as long as jobs did not require constant use of her hands and as long as work that was required was limited to light handling or fine motor work on up to frequent basis . . . .

Tr. 1333.

         As noted, the ALJ heard testimony from a VE at Moffitt's second hearing. The ALJ began by asking the VE a hypothetical question that posited a 42-year-old individual who had taken some on-line college courses, had Moffitt's work history, and had no limitations on reaching, handling, fingering, and feeling. The VE testified that such a person could perform Moffitt's past work: (1) as a machine operator, as she had performed it, but not as that job is classified in the Dictionary of Occupational Titles; (2) as an inspector, as that job is generally performed, but not as she had performed it; and (3) as a cashier. The VE further testified that the person described in the ALJ's first hypothetical could perform the jobs of parts cleaner, retail marker, and laundry worker. Then the ALJ added an additional limitation to his first hypothetical, i.e., a ...

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