United States District Court, D. New Hampshire
Veronica E. Moffitt
Nancy A. Berryhill, Acting Commissioner, Social Security Administration
N. Laplante United States District Judge.
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.
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,
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, document no. 17, is part of the
court's record and will be summarized here, rather than
repeated in full.
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.
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”). 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,
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
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 . . . .
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 ...