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Laberge v. Berryhill

United States District Court, D. New Hampshire

December 28, 2018

Torrey Laberge
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          ORDER

          JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE.

         Torrey Laberge moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny his applications 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.

         I. Standard of Review

         The applicable standard of review 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 standard of review for decisions on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). However, the court “must uphold a denial of social security disability 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 standard of review that applies when an applicant claims that an ALJ made a factual error,

[s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner's] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

         In addition, “‘issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Acting Commissioner],' and ‘the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for her, not for the doctors or for the courts.'” Id. (quoting Rodriguez, 647 F.2d at 222). Thus, 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).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement, document no. 9, is part of the court's record and is summarized here, not repeated in full.

         Laberge stopped working full time on March 31, 2016, when he was laid off from his job as an x-ray inspector due to the closure of the factory where he had worked. When he was laid off, he was 40 years old.

         Claimant has received diagnoses of lumbosacral spondylosis without myelopathy, [1] cervical radiculopathy and myofascial pain syndrome, [2] bilateral carpal tunnel syndrome, C. difficile diarrhea, and celiac disease. His treatment has included radiofrequency lesioning, medication (Tramadol, cyclobenzaprine, Nucynta, gabapentin, oxycodone, Zoloft, Klonopin, and Wellbutrin), trigger-point injections, medial branch block injections, physical therapy, wrist splints, and carpal tunnel release surgery. Once, a physician prescribed compression stockings as treatment for varicose veins in claimant's lower legs, but he could not afford to purchase them.

         In May of 2016, Laberge applied for DIB and SSI, claiming that he became disabled on May 1, 2014, as a result of carpel tunnel syndrome in both hands, back pain, a tilted pelvis, hip pain, and bursitis in his right shoulder and hip. He later revised his alleged onset date to March 31, 2016, which is the day he was laid off from his job as an x-ray inspector.

         In September of 2016, Dr. Phyllis Sandell, a non-examining state-agency consultant, reviewed Laberge's medical records, and based upon that review, she assessed his physical residual functional capacity (“RFC”).[3] According to Dr. Sandell, Laberge could lift and/or carry 25 pounds frequently and 50 pounds occasionally, push and/or pull the same amount of weight he could lift and/or carry, stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday, and sit (with normal breaks) for a total of about six hours in an eight-hour workday. She further opined that Laberge needed to alternate between sitting and standing for five minutes each hour to relieve pain and discomfort. With respect to postural activities, Dr. Sandell opined that Laberge had an unlimited capacity for stooping and kneeling; could frequently balance; but could only occasionally climb ramps/stairs, climb ladders/ropes/scaffolds, crouch, and crawl. With respect to manipulative activities, Dr. Sandell opined that Laberge had an unlimited capacity for reaching, fingering, and feeling, but had a limited capacity for handling, with both hands, which she described as a capacity for only occasional grasping and twisting, due to mild carpal tunnel syndrome. Finally, Dr. Sandell opined that Laberge had no visual, communicative, or environmental limitations.

         In June of 2017, Christopher Laurent, an advanced practice registered nurse (“APRN”) who had treated Laberge, completed a Physical Impairment Medical Source Statement in which he offered opinions on Laberge's physical RFC. Mr. Laurent did not have a supervising physician, but his Medical Source Statement was co- signed by Dr. John Ford.[4] While Dr. Ford neither treated Laberge nor supervised Mr. Laurent, Mr. Laurent reported that he had discussed Laberge's condition and his opinions with Dr. Ford.

         Mr. Laurent indicated that he had been treating Laberge for four years, and he identified diagnoses of osteoarthritis in both hips, chronic ankle pain, disc disease, [5] and celiac disease. Mr. Laurent does not appear to have listed carpal tunnel syndrome as a diagnosis on his Medical Source Statement, although such a diagnosis does appear in some, but far from all, of Mr. Laurent's progress notes.

         As for Laberge's physical RFC, Mr. Laurent opined that Laberge would constantly experience pain or other symptoms severe enough to interfere with the attention and concentration needed to perform even simple work tasks, but also opined that Laberge was capable of performing low stress jobs. He further opined that Laberge could: (1) walk one block without rest or severe pain; (2) sit for 20 minutes at one time before needing to get up; (3) stand for 20 minutes at one time before needing to sit down; (4) sit for less than two hours total in an eight- hour workday; and (5) stand/walk for less than two hours total in an eight-hour workday. He further opined that Laberge: (1) needed to walk around for 10 minutes every 30 minutes: (2) needed a job that permits shifting positions at will from sitting, standing, or walking; and (3) needed a job that permits unscheduled 20-minute breaks every one to two hours. In addition, Mr. Laurent opined that Laberge could occasionally lift and carry less than 10 pounds, could rarely lift 10 pounds, and could never lift 20 pounds or more. With respect to postural activities, Mr. Laurent opined that Laberge could occasionally look down, turn his head, look up, hold his head in a static position, twist, stoop, and crouch, but could only occasionally climb ladders or stairs. However, Mr. Laurent opined that Laberge had no limitations on his abilities for reaching, handling, or fingering. Finally, Mr. Laurent opined that on average, Laberge was likely to be absent from work more than four days per month as a result of his impairments or treatment for them.

         The SSA denied Laberge's applications for DIB and SSA. Thereafter, he received a hearing before an ALJ. At the hearing, the ALJ took testimony from a vocational expert (“VE”), and posed several hypothetical questions to her. In the first one, the ALJ asked the VE

to assume an individual of the same age, education and work background as the claimant who is capable of the medium exertion level with the ability to lift and carry up to 50 pounds occasionally, 25 pounds frequently, who can stand and walk up to six hours per day and sit up to six hours per day but must alternate between sitting and standing for five minutes per hour as needed to relieve pain, who can frequently balance, occasionally climb, occasionally crouch, crawl and occasionally grasp and twist bilaterally with the upper extremities.

         Administrative Transcript (hereinafter “Tr.”) 68. The VE testified that a person with those limitations could not perform claimant's past work as a bartender, bench inspector, construction worker, welder, or utility worker, but could perform the medium-duty jobs of industrial cleaner and kitchen helper and could also perform the light-duty jobs of furniture-rental clerk, storage-facility rental clerk, and recreation-facility attendant. The ALJ followed up with several additional hypothetical questions, none of which are relevant to this appeal. The VE also testified that the customary tolerance for absenteeism is “no more than one absence per month.” Tr. 72.

         After Laberge's hearing, the ALJ issued a decision. In it, she found that Laberge had three severe impairments: lumbar spondylosis, osteoarthritis of the ankles and hips, and carpal tunnel syndrome. The ALJ further found that none of claimant's impairments, alone or in combination, met or medically equaled the severity of any impairment on the SSA's list of impairments that are per se disabling. Then, the ALJ assessed Laberge's physical RFC this way:

[T]he claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except that he requires the opportunity to alternate sitting and standing for five minutes per hour as needed to relieve pain. He can frequently balance, occasionally climb ramps/stairs/ladders/ ropes/scaffolds, occasionally crouch, and occasionally crawl. He can occasionally grasp and twist with the upper extremities.

         Tr. 20. In reliance upon the VE's testimony, the ALJ determined that Laberge could not perform his past work, but retained the RFC to perform the jobs of industrial cleaner, kitchen helper, furniture-rental clerk, storage-facility rental clerk, and recreational-facility attendant. Consequently, she found that Laberge was not under a disability from March 31, 2016, through the date of her decision, which was August 24, 2017.

         III. Discussion

         A. The Legal Framework

         To be eligible for DIB, a person must: (1) be insured for that benefit; (2) not have reached retirement age; (3) have filed an application; and (4) be under a disability. 42 U.S.C. § 423(a)(1)(A)-(D). To be eligible for SSI, a person must be aged, blind, or disabled, and must meet certain requirements pertaining to income and assets. 42 U.S.C. § 1382(a). The only question in this case is whether the ALJ correctly determined that Laberge was not under a disability from March 31, 2016, through August 24, 2017.

         To decide whether a claimant is disabled for the purpose of determining eligibility for either DIB or SSI, an ALJ is required to employ a five-step sequential evaluation process. See ...


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