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Hastings v. Berryhill

United States District Court, D. New Hampshire

September 12, 2018

Carrie Hastings
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          Alexandra M. Jackson, Esq. Karen B. Fitzmaurice, Esq. Robert J. Rabuck, AUSA

          ORDER ON APPEAL

          JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE.

         At issue in this Social Security appeal is whether an Administrative Law Judge erred when, after a remand, he “reconsidered” his earlier finding that plaintiff Carrie Hastings suffered from a severe impairment and denied her application for disability benefits. Hastings has moved to reverse the decision. See LR 9.1. The Acting Commissioner of the SSA has cross-moved for an order affirming the ALJ's decision. See Id. After careful consideration of the parties' memoranda, the administrative record and relevant cases, the Court is persuaded that the ALJ exceeded the scope of the remand. The court therefore grants Hastings's motion and denies the Acting Commissioner's motion.

         I. Applicable legal standard

         The court limits its review of a final decision of the SSA “to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). It “review[s] questions of law de novo, but defer[s] to the Commissioner's findings of fact, so long as they are supported by substantial evidence, ” id., that is, “such evidence as a reasonable mind might accept as adequate to support a conclusion, ” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). Though the evidence in the record may support multiple conclusions, the court will still uphold the ALJ's findings “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The court therefore “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 Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         II. Background[1]

         A. Prior proceedings

         Hastings first applied for disability benefits in 2005, alleging that she became disabled in 2001.[2] After a hearing, ALJ Klingebiel found that Hastings was not disabled[3] within the meaning of the Social Security Act.[4] The Appeals Council vacated that decision and remanded the case for a new hearing.[5] ALJ Klingebeil again denied Hastings's claim.[6] The Appeals Council vacated the second denial and remanded the case for another hearing.[7] Following that hearing, ALJ Levin denied Hastings claim a third time.[8] The Appeals Council denied Hastings's request for review.[9]

         Hastings appealed the third denial to this Court. See Hastings v. Colvin, Civ. No. 14-419-PB (D.N.H filed Sept. 26, 2014) (“Hastings I”). After the case had been pending for approximately nine months, the Acting Commissioner filed an assented-to motion “for entry of final judgment . . . with reversal and remand of the cause to the defendant.”[10] The court granted the motion, adopting the Acting Commissioner's instructions to the ALJ to:

clarify the period at issue addressing the alleged onset date, further consider the opinion evidence of record, including Dr. [Hugh] Fairley's opinion, reassess Plaintiff's maximum residual functional capacity [(RFC)] throughout the period at issue with reference to specific evidence of record in support of the assessed limitations, obtain supplemental vocational expert testimony, and issue a new decision.[11]

         After the remand, the Appeals Council vacated ALJ Levin's decision and remanded the case for a new hearing, which ALJ Levin conducted in January 2016.

         B. The decision under review

         ALJ Levin invoked the requisite five-step sequential evaluation process in assessing Hastings's request for benefits. See 20 C.F.R. §§ 404.1520, 416.920. After determining that Hastings had not engaged in substantial gainful activity for a continuous 12-month period after the alleged onset of her disability, the ALJ analyzed the severity of her impairments. At this second step, the ALJ concluded that Hastings had the following severe impairments: obesity, degenerative lumbar disc disease, diabetes mellitus, and hearing loss.[12] In addition, and as particularly relevant to this appeal, the ALJ reversed his previous finding (made after Hastings's third hearing) that Hastings's bilateral carpal tunnel syndrome qualified as a severe impairment.[13] The ALJ made this finding after “reconsideration of the evidence in its totality, ” rather than on any new evidence.[14] In his earlier decision, after finding that Hastings's carpal tunnel syndrome was a severe impairment, ALJ Levin incorporated that finding into his residual functional capacity (“RFC”) determination, which limited Hastings to only occasional bilateral overhead reaching and only frequent handling and grasping with her left hand.[15] After rescinding the carpal tunnel syndrome finding, ALJ Levin included no manipulative limitations in Hastings's RFC.[16]

         At the third step, the ALJ found that Hastings's remaining severe impairments did not meet or “medically equal” the severity of one of the impairments listed in the Social Security regulations.[17] See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.

         After reviewing the record medical opinions, the ALJ concluded that Hastings retained the RFC to perform sedentary work, see 20 C.F.R. §§ 404.1567(a), except that:

She must avoid all ladders ropes and scaffolds. She must avoid all kneeling, crouching, and crawling. She could occasionally stoop and balance, with occasional being defined as up to one-third of the workday. She could occasionally push and pull with the upper extremities as needed to use hand controls. She must avoid even moderate exposure to loud background sounds.[18]

         Based on a vocational expert's testimony, the ALJ found that, even limited in this manner, Hastings could perform her past relevant work as a telemarketer, as her RFC did not prevent her from performing the requirements of that job.[19] The ALJ concluded his analysis and found that Hastings was not disabled within the meaning of the Social Security Act.[20]

         III. Analysis

         Hastings challenges three aspects of the ALJ's decision. First she argues that the ALJ improperly rescinded his earlier finding that her bilateral carpal tunnel syndrome was a severe impairment.[21] Next, she argues that the ALJ erred by finding that her cellulitis was not a severe impairment.[22] Hastings's third claim is that the ALJ erred by finding that she could return to her job as a telemarketer.[23] That job, she asserts, includes a “moderate” noise intensity, while the RFC provides that Hastings “must avoid even moderate exposure to loud background sounds.”[24] The ...


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