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Sprano v. Berryhill

United States District Court, D. New Hampshire

December 19, 2018

Richard Sprano
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          Karen B. Fitzmaurice, Esq. Alexandra M. Jackson, Esq. Candace H. Lawrence, Esq.

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         Richard Sprano seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of Social Security that denied his application for disability insurance benefits and supplemental security income. In support, Sprano contends that the Administrative Law Judge (“ALJ”) erred in weighing the medical opinions, which caused an erroneous conclusion that he was not disabled. The Acting Commissioner moves to affirm. Sprano filed a reply, and the Acting Commissioner filed a surreply to address the arguments raised there. See LR 9.1(d).

         Standard of Review

         In 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 if they are supported by substantial evidence. § 405(g). Substantial evidence is “more than a scintilla of evidence” but less than a preponderance. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018). The court must affirm the ALJ's findings, even if the record could support a different conclusion, when “a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the ALJ's] conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal quotation marks omitted); accord Purdy, 887 F.3d at 13.

         Background[1]

         On March 31, 2016, Richard Sprano filed applications for social security benefits under Title II and Title XVI, alleging an onset of disability on February 3, 2010.[2] He was forty-two years old when he filed his applications. Sprano was treated at Charlestown Family Medicine by PA-C Uptegrove for back pain and diabetes from January of 2016 to January of 2017.

         Dr. Thomas H. Gassert, M.D., saw Sprano in consultation on referral from PA-C Uptegrove on August 10, 2016. Dr. Gassert noted that Sprano seemed uncomfortable due to back pain. He found that Sprano could hold twenty pounds at shoulder height, his gait and stance were normal, all other leg and arm joints were normal, no signs of radiculopathy, and he could heel and toe walk with modest back pain. Dr. Gassert referred Sprano for a residual functional capacity assessment.

         In October of 2016, Karen Huyck, M.D., who practices occupational medicine, did residual functional capacity testing of Sprano as a consultative physician. Dr. Huyck had a follow up meeting with Sprano on January 30, 2017, when she provided the results of her earlier examination.

         Dr. Huyck found that Sprano had impairment in his tolerance for standing, pace, walking, and lifting. She also noted that he had completed school only through ninth grade and had failed the pretest for GED courses. She also found that he “gave nearly full levels of physical effort” during her testing.

         Dr. Huyck found that Sprano could sit and stand for thirty minutes each. His walking test showed that he maintained a consistent speed for six minutes and achieved 55% of the distance expected for his age and cardiovascular condition. He was able to lift up to forty-three pounds occasionally up to shoulder height and could carry up to forty-three pounds. He scored in the fifth percentile in a manipulation test. Dr. Huyck further found that “although he may have a sedentary work capacity, he does not have the sitting tolerance or the literacy skills to be able to do a sedentary job.” Based on Sprano's reports to her about falling, she also found he was “at significant fall risk.”

         Dr. Stuart Glassman, M.D., who practices with Granite State Physiatry PLLC, did a consultative examination of Sprano on May 5, 2017. Dr. Glassman reviewed Sprano's medical records and Dr. Huyck's functional capacity assessment. Based on the records and his examination, Dr. Glassman completed a “Medical Source Statement of Ability to Do Work-related Activities (Physical)” for New Hampshire Disability Determination Services.

         Dr. Glassman found that Sprano could occasionally lift and carry up to fifty pounds, could frequently lift and carry up to twenty pounds, and could continuously lift and carry up to ten pounds. He wrote that, because of his spinal stenosis and back pain, Sprano could sit for fifteen minutes at a time for a total of three hours, stand for twenty minutes at a time for a total of four hours, and walk for five minutes at a time for a total of one hour. He found that Sprano was limited to occasional reaching overhead, frequent reaching in all other directions, and had no limitations in handling, fingering, feeling, and pushing and pulling. His use of foot controls was limited to frequently. Other postural activities were limited to frequently. Dr. Glassman found that Sprano could do all of the listed activities, such as shop, travel, and walk on uneven surfaces.

         A hearing was held before an ALJ on June 6, 2017. Sprano was represented by counsel, appeared, and testified at the hearing. A vocational expert also appeared and testified.

         Sprano explained that he stopped working because of back pain. The ALJ reviewed Dr. Glassman's findings with Sprano, and she interpreted Dr. Glassman's limitations as to the time he could sit and stand as a need for an option to sit or stand. The ALJ also reviewed Dr. Huyck's findings. Sprano said that his spine doctor told him not to work, but his counsel denied having a medical record to support Sprano's assertion. Sprano's attorney and the ALJ asked him about his medical treatment for his back, his pain, and his daily activities.

         The ALJ posed a hypothetical question to the vocational expert based on Dr. Glassman's residual functional capacity assessment. She described a person who could work at the medium exertional capacity with an option to sit or stand while working, limited standing and walking to five hours during the day, doing each for about half of the time, and limited sitting to about three hours. Reaching and postural activities were limited to occasionally.

         In response, the vocational expert said that such a person would not be able to do Sprano's past work. She explained that with the sit/stand option, the person would be limited to work at the light exertional level. With those restrictions, the person could work as a storage facility rental clerk, or as an inspector or hand packager. The vocational expert said that there were no sedentary jobs with a sit/stand option.

         Sprano's attorney questioned the vocational expert about the limitations she considered. Specifically, the attorney asked whether someone “who is limited to three hours . . . to half standing in a workshift” could do the jobs the vocational expert identified. Doc. 9-2 at 64. The ...


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