United States District Court, D. New Hampshire
B. Fitzmaurice, Esq. Alexandra M. Jackson, Esq. Candace H.
A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE
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).
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
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. 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.
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
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.
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.
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
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.
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.
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.
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
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.
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.
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 ...