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Sanford v. Berryhill

United States District Court, D. New Hampshire

September 12, 2018

Albert Joseph Sanford III
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          D. Lance Tillinghast, Esq. Robert J. Rabuck, AUSA



         Pursuant to 42 U.S.C. § 405(g), Albert Sanford moves to reverse the Acting Commissioner's decision to deny his 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, 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) (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. 14, is part of the court's record and will be summarized here, rather than repeated in full.

         Sanford initially applied for SSI in April of 2013. His claim was denied on May 16 of that year, and his request for a hearing was dismissed as untimely. Then, in December of 2013, he filed the applications for DIB and SSI that resulted in the unfavorable decision that he now appeals.

         Sanford stopped working after he suffered a workplace injury on February 6, 2011. Before that, he had worked as a furniture moving truck driver, as a furniture mover, as a delivery driver, as a warehouse worker, and as a material handler. In his applications, he claimed that he was disabled as a result of: (1) a back injury in the form of an annular tear at ¶ 1-L5; (2) center to right buttocks pain; (3) various mental conditions; (4) posttraumatic stress disorder, and (5) mood disorders.

         Sanford has been diagnosed with the following physical impairments: gastroesophageal reflux disease, Bell's Palsy, L5-S1 disc desiccation, a left-knee meniscus tear, rule-out COPD, [1]mastoiditis, a deteriorated herniated lumbosacral disc, severe left-sided facet arthropathy at ¶ 2-C3 with associated degenerative endplate edema associated with a left-side uncovertebral spur, a cystic lesion on his pancreas, and an umbilical hernia. For those impairments, his treatment has consisted largely of medication and some physical therapy. His treatment has not included anything more invasive, such as surgery.

         The record includes assessments of Sanford's physical residual functional capacity (“RFC”)[2] by: (1) Dr. Donovan Albertson, a non-examining physician who co-signed several workers' compensation medical forms in February of 2011; (2) Dr. Kenneth Polivy, a physician who examined Sanford in July of 2011; (3) Dr. Peter Loeser, a physician who performed a consultative examination in March of 2014;[3] (4) Dr. Jonathan Jaffe, a non-examining state-agency consultant who reviewed Sanford's medical records and performed an RFC assessment in March of 2014; (5) Benjamin Otis, a physical therapist who, upon referral from Sanford's primary care provider, Dr. Ruth James, put Sanford through a battery of tests and wrote a Functional Capacity Evaluation (“FCE”) in December of 2015; and (6) Dr. James, who completed a Physical Impairment Medical Source Statement in August of 2016.[4] The RFC assessments that are relevant to this decision are those provided by Dr. Jaffe, Mr. Otis, and Dr. James.

         To prepare his RFC assessment, Dr. Jaffe reviewed the results of Dr. Loeser's consultative examination along with the other available medical evidence.[5] He determined that Sanford could: occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk (with normal breaks) for about six hours in an eight-hour workday, sit (with normal breaks) for more than six hours on a sustained basis in an eight-hour workday, and push and/or pull the same amount he could lift and/or carry. Dr. Jaffe also found that Sanford was limited to occasional performance of all seven postural activities (climbing ramps and stairs; climbing ladders, ropes, and scaffolds; balancing; stooping; kneeling; crouching; and crawling).

         To prepare his FCE, Mr. Otis subjected Sanford to several hours of physical testing. Based upon the results, Mr. Otis determined that Sanford was capable of occasional stair climbing, ladder climbing, walking, and sitting, with occasional defined as 6 to 33 percent of a workday, i.e., up to two hours and forty minutes. See Administrative Transcript (hereinafter “Tr.”) 1184-85. He elaborated:

Albert was significantly limited in the forward bending test, he was limited in the 8 minute walk test, complaining of back pain with bearing weight through his right leg, he was limited in the sitting test, tolerating only 17 minutes of sitting. He demonstrated functional weakness in his core, quickly demonstrating compensation with material handling of lighter weight. He demonstrated some limitation in stairs, ladder climbing and front carry due to his walking limitation.

Tr. 1182. Finally, Mr. Otis opined that “Albert has difficulty tolerating sitting for greater than 15 minutes.” Tr. 1183.

         Turning to Dr. James, her statement indicates that she had been treating Sanford since June of 2011, and that he had been diagnosed with a herniated lumbosacral disc and right flank pain. She opined that Sanford's experience of pain or other symptoms would frequently “interfere with attention and concentration needed to perform even simple work tasks, ” Tr. 1221, but did not answer any further questions pertaining to Sanford's RFC. Instead, she wrote in the margin of the form “see functional capacity testing, ” id., which, presumably, was a reference to the FCE she had commissioned from Mr. Otis.

         After Sanford's applications were denied by the Social Security Administration, he received a hearing before an Administrative Law Judge (“ALJ”). At his hearing, Sanford testified that he could not cook for himself, see Tr. 99, 105, could not do his own dishes, see Tr. 105, 106, and shopped once a month with the help of a friend, see Tr. 84. He also testified that he could stand for about 10 minutes before needing to sit down, and that he could sit for about 15 minutes at a time. See Tr. 106-07. And, indeed, midway through his hearing, Sanford asked the ALJ for permission to stand up. See Tr. 98.

         The ALJ took testimony from a vocational expert (“VE”). In her first hypothetical question to the VE, the ALJ posited

an individual who can lift 20 pounds occasionally, 10 pounds frequently, can stand, walk, and sit six hours each per day [and] can occasionally climb stairs, ramps, ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, and crawl.

Tr. 123.[6] The VE testified that such a person could not do Sanford's previous work, but could perform the jobs of cafeteria attendant, parking-lot attendant, and laundry folder. Then the ALJ asked the VE another hypothetical question that posited several mental limitations in addition to the previously noted physical limitations. The VE testified that a person with those physical and mental ...

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