United States District Court, D. New Hampshire
Justin L. Venus
Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Alexandra M. Jackson, Esq. Karen B. Fitzmaurice, Esq.
Penelope E. Gronbeck, Esq. Terry L. Ollila, AUSA
BARBADORO UNITED STATES DISTRICT JUDGE.
Venus moves to reverse the decision of the Acting
Commissioner of the Social Security Administration
(“SSA”) to deny his application for Social
Security disability insurance benefits, or DIB, under Title
II of the Social Security Act, 42 U.S.C. § 423. 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.
Standard of Review
applicable standard of review in this case provides, i
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). 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)).
the standard of review that applies when an applicant claims
that an SSA adjudicator 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
parties have submitted a Joint Statement of Material Facts.
That statement, document no. 16, is part of the court's
record and will be summarized here, not repeated in full.
applied for DIB, Venus was 38 years old. His primary
employment had been as a property maintenance worker.
September 7, 2010, after being diagnosed with
“[b]ilateral hip osteoarthritis and cam lesions,
” Administrative Transcript (hereinafter
“Tr.”) 633, Venus had a surgical procedure known
as “hip resurfacing arthroplasty, ”
id.According to a preoperative note, Venus
weighed 237 pounds in July of 2010.
follow-up visit with Dr. Phat Nguyen in July of 2011, Venus
reported that his “[h]ip pain [was] better after
surgery, ” Tr. 263, that he had “been able to be
more active, ” id., and that he was
“[l]osing weight slowly, ” Id. Based
upon a musculoskeletal examination, Dr. Nguyen reported that
Venus was negative for gait problems. He also reported that
Venus weighed 231 pounds.
October 2012 two-year follow-up visit at his surgeon's
office, Venus reported that: (1) “his pain [was]
markedly improved over preoperative status, ” Tr. 534;
(2) he had “been ambulating with no assistive device,
” id.; and (3) he was “continuing to
work as a maintenance manager and overall [was] doing well
with that, ” Id. In addition, the
physician's assistant who saw Venus reported that
“X-rays show[ed] a well-placed prosthesis with no
evidence of fracture or loosening.” Tr. 535.
began reporting hip pain in February of 2013. In March, he
saw Dr. Nguyen and complained of hip pain. Dr. Nguyen
reported Venus's weight as 252 pounds. Under the heading
“Assessment and Plan” he wrote:
P[atien]t can walk for up to 5-10 miles a day at this time. I
think his hip pain is due . . . at least partly to obesity
Tr. 518. In June of 2013, Venus was ambulating with an
antalgic gait. By November of 2013, Venus's left hip
had failed completely. He had it replaced in December of
2013. A preoperative note listed his weight as 234 pounds and
his BMI as 31.91. Three weeks after his left hip was
replaced, Venus was ambulating without an antalgic gait. In
April of 2014, he had his right hip replaced. A preoperative
note listed his weight as 253 pounds and his BMI as 33.48.
Two weeks after his right hip was replaced, Venus was
ambulating with an antalgic gait, but “without a
Trendelenburg gait, ” Tr. 409. Several weeks later, he was
ambulating without an antalgic gait.
of 2014, Venus applied for DIB, claiming to have been
disabled since September 9, 2010, as a result of “[h]ip
problems.” Tr. 69. In an undated Adult Disability
Report that Venus submitted in support of his application for
DIB, he reported his weight as 235 pounds.
September 18, 2014, Venus saw Dr. Bryan Lawless for a
six-month follow-up on his right hip replacement and a
ten-month follow-up on his left hip replacement. Dr.
Lawless's physical examination revealed: (1) ambulation
without an antalgic gait or a Trendelenburg gait; (2) no pain
with hip flexion to 110 degrees; (3) no pain with hip
rotation; and (4) a “well aligned and well fixed total
hip component with no evidence of lucency, subsidence, or
osteolysis, ” Tr. 393,  as documented by an X-ray. Dr.
Lawless concluded: “No issues [status post] total hip
arthroplasty. His exam reveals hips working well, ” Tr.
September 20, 2014, two days after Venus saw Dr. Lawless, his
eligibility for disability insurance benefits expired. In
other words, September 20 was Venus's date last insured
(“DLI”) for DIB.
December of 2014, about two months after Venus's DLI, he
saw Dr. Waverly Green, on a referral from his primary-care
provider, “for evaluation of obstructive sleep apnea
syndrome.” Tr. 771. Dr. Green gave Venus a principal
diagnosis of snoring and additional diagnoses of APNEA,
insomnia, and restless-leg syndrome. He also indicated his
strong suspicion that Venus had obstructive sleep apnea
(“OSA”), and he arranged for a sleep study. In
his report on Venus's sleep study, which was conducted in
January of 2015, Dr. Green made two diagnoses: (1) moderate
OSA; and (2) “[c]omorbid medical conditions
include[ing] obesity, hypertension, insomnia, and excessive
daytime sleepiness, ” Tr. 780. Dr. Green recommended
that Venus use an AutoPAP device and also said this:
“Given his obesity as manifest by a BMI of 36.5, [I]
would discuss the role of weight loss in the long-term
management of obstructive sleep apnea, ” id.
January of 2015, the SSA determined that Venus had three
physical impairments that were not severe (gastroesophageal
reflux disease (“GERD”), hypertension, and
restless-leg syndrome), and one severe physical impairment:
reconstructive surgery of a weight-bearing joint. The
SSA's Disability Determination Explanation form says
nothing about obesity.
January of 2015, a non-examining state-agency consultant, Dr.
Craig Billinghurst, reviewed Venus's medical records and
assessed his physical residual functional capacity
(“RFC”). According to Dr. Billinghurst, Venus could
lift and/or carry 10 pounds frequently and 20 pounds
occasionally, stand and/or walk (with normal breaks) for a
total of two hours, sit (with normal breaks) for more than
six hours on a sustained basis in an eight-hour workday, and
push and/or pull the same amount he could lift and/or carry.
With respect to postural activities, Dr. Billinghurst opined
that Venus could occasionally climb ramps/stairs, balance,
stoop, kneel, crouch, and crawl, but could never climb
ladders/ropes/scaffolds. With respect to environmental
limitations, Dr. Billinghurst opined that Venus had an
unlimited capacity for exposure to extreme cold; extreme
heat; wetness; humidity; noise; and fumes, odors, dusts, and
gases; but had to avoid concentrated exposure to vibration
and all exposure to hazards (machinery, heights, etc.).
Finally, Dr. Billinghurst opined that Venus had no
manipulative, visual, or communicative limitations. Under the
heading “Additional Explanation, ” Dr.
Billinghurst listed 12 specific medical records he had
reviewed when formulating his opinions.
April and July of 2015, i.e., seven and ten months after
Venus's DLI, he saw a gastroenterologist, Dr. Howard
Mitz, for treatment of GERD. After the second visit, Dr. Mitz
gave three diagnoses: GERD, Barrett's,  and obesity. In
his office note, Dr. Mitz endorsed Venus's goal of losing
April of 2015, Venus saw Dr. Dougald MacArthur complaining of
bilateral hip pain and asking Dr. MacArthur to fill out
“Social Security paperwork.” Tr. 691. Dr.
MacArthur examined Venus and completed a Medical Source
Statement of Ability to do Work-Related Activities
(Physical). In his office note, Dr. MacArthur reported that
Venus “ambulate[d] into the office with a normal gait,
” Tr. 691, diagnosed Venus with hip pain, and noted
“stable total hip arthroplasties” that showed no
“radiographic signs of loosening or settling, ”
Id. He also reported that Venus weighed 260 pounds
and recommended that he lose weight. He did not, however,
list obesity as a diagnosis.
medical-source statement form that Dr. MacArthur completed
instructed him to “[i]dentify the factors (e.g., the
particular medical signs, laboratory findings, or other
factors . . .) that support[ed] [his] assessment of any
limitations.” Tr. 687. It continued: “IT IS VERY
IMPORTANT TO DESCRIBE THE FACTORS THAT SUPPORT YOUR
ASSESSMENT. WE ARE REQUIRED TO CONSIDER THE EXTENT TO WHICH
YOUR ASSESSMENT IS SUPPORTED.” Id.
medical-source statement, Dr. MacArthur opined that Venus:
(1) could occasionally lift and/or carry 10 pounds; (2) stand
and/or walk less that two hours in an eight-hour
workday;(3) needed to periodically alternate
sitting and standing to relieve pain or discomfort; and (4)
had a limited capacity for pushing and/or pulling with his
lower extremities. The medical-source statement form asked
Dr. MacArthur to identify the “medical/clinical
finding(s) [that] support[ed] [his] conclusion[s]”
about Venus's exertional limitations. Tr. 688. He did not
answer that question. See Id. With respect to
postural activities, Dr. MacArthur opined that Venus could
never climb ramps, stairs, ladders, ropes, or scaffolds, and
could never balance, kneel, crouch, crawl, or
stoop. He identified no manipulative or
communicative limitations, and only one environmental
limitation, a need to avoid vibration. Finally, Dr. MacArthur
answered “yes, ” with no further elaboration, to
this question: “Is it medically reasonable to expect
that this patient's ability to maintain attention and
concentration on work tasks throughout an 8 hour day is
significantly compromised by pain, prescribed medication or
both?” Tr. 689.
November of 2015, Venus was diagnosed with a gallbladder
polyp. The next month, he had a laparoscopic cholecystectomy,
and subsequent pathology led to a diagnosis of chronic
the SSA denied Venus's application for DIB, he received a
hearing before an ALJ. In a pre-hearing filing, Venus's
counsel: (1) identified obesity as a “medically
determinable severe impairment, ” Tr. 252; (2) stated
that Venus listed his weight as 235 pounds (which translates
to a BMI of 31.9) on his Adult Disability Report; (3) cited
Dr. Nguyen's March 2013 office note which reported
Venus's weight as 252 pounds and Dr. Nguyen's view
that Venus's “hip pain [was] due . . . at least
partly to obesity and walking, ” Tr. 253, 518; and (4)
reminded the ALJ of the Social Security Ruling
(“SSR”) that directs SSA adjudicators to
“do an individualized assessment of the effect of
obesity on an individual's functioning when deciding
whether [an] impairment is severe [at step two of the
sequential evaluation process], ” Tr. 253 (quoting SSR
02-1p, 2002 WL 34686281, at *4 (S.S.A. Sept. 12, 2002)).
Venus's hearing, neither the ALJ nor Venus's counsel
asked Venus about his weight or any functional limitations he
experienced as a result of his weight. Venus offered no
testimony on that topic.
the ALJ did pose a series of hypothetical questions to a
vocational expert (“VE”). In the first one, he
asked the VE to consider a person of Venus's same age,
education, and work experience, and who had the following
[A]ssume that he can lift 20 pounds occasionally, ten pounds
frequently, can stand or walk for two hours in an eight hour
work day. Sitting is more than six hours. Unlimited use of
his hands and feet to operate controls and push and pull.
Should never climb ladders, scaffoldings, or ropes. Gripping
posturals are occasional. Should avoid a concentrated
exposure to vibration and all exposure to unprotected heights
and hazardous machinery.
Tr. 51. The VE testified that a person with that RFC could
not perform Venus's past work but could perform the
sedentary jobs of assembly worker, electronics inspector, and
hand sorter. In response to a second question from the ALJ,
the VE testified that if the person in the first hypothetical
could never perform any of the postural activities, he would
not be able to perform any jobs. Then, in response to
questions from Venus's counsel, the VE testified that no
jobs would be available for a person who needed to stand up
to relieve pain for more than eight minutes per hour, who
would miss more than three or four days of work per month due
to pain or fatigue, or who was off task about 20 percent of
the time because of pain.
the hearing, the ALJ issued a decision in which he determined
had the following severe impairments: degenerative disease of
the hips status post-resurfacing surgery September 2010 and
status post bilateral hip replacement (left=12/06/2013 and
right April 4, 2014).
Tr. 14. In making that determination, the ALJ expressly found
that hypertension, GERD, Venus's gallbladder condition,
and sleep apnea were not severe impairments. He did not
mention obesity, but did
conclude that there is no evidence that any other
conditions have met the durational requirements of this
program, or that they create any specific functional
limitations regarding the claimant's ability to perform
basic work-related activities; thus, they are considered not
“severe.” Nevertheless, the undersigned reviewed
and considered all ‘severe' and
‘non-severe' impairments in formulating
[Venus's] residual functional capacity.
after determining that Venus's impairments did not meet
or medically equal the severity of any of the conditions
described in the SSA's listing of impairments that are
per se disabling, the ALJ determined that
through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(a) except that he is limited from
lifting/carrying more than 20 pounds occasionally and 10
pounds frequently and from standing/walking more than 2 hours
total during the day. He is able to sit for more than 6 hours
during an 8-hour day and he has unlimited use of his hands.
He cannot climb, but he is able to occasionally balance,
stoop, kneel, crouch and crawl. He has unlimited use of his
Tr. 16. Based upon the foregoing RFC, and the testimony of
the VE, the ALJ determined that Venus could not perform his
past work, but could perform the jobs of assembly worker,
electronics inspector, and inserter. On that basis, the ALJ
determined that Venus was not disabled.
eligible for disability insurance benefits, a person must:
(1) be insured for such benefits; (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). The
only question in this case is whether the ALJ correctly
determined that Venus was not under a disability from