United States District Court, D. New Hampshire
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
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
Standard of Review
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 . . ..
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,
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).
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).
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.
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.
has received diagnoses of lumbosacral spondylosis without
myelopathy,  cervical radiculopathy and myofascial pain
syndrome,  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
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.
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”). 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.
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. 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.
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,  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.
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.
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
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.
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.
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,
The Legal Framework
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.
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.