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Venus v. Berryhill

United States District Court, D. New Hampshire

January 9, 2019

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



         Justin 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.

         I. Standard of Review

         The applicable standard of review in this case provides, i 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). 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 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 curiam).

         II. Background

         The 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.

         When he applied for DIB, Venus was 38 years old. His primary employment had been as a property maintenance worker.

         On 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.[1]According to a preoperative note, Venus weighed 237 pounds in July of 2010.

         At a 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.

         At an 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.

         Venus 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 and walking.

Tr. 518. In June of 2013, Venus was ambulating with an antalgic gait.[2] 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.[3] 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.[4] Several weeks later, he was ambulating without an antalgic gait.

         In July 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.

         On 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, [5] as documented by an X-ray. Dr. Lawless concluded: “No issues [status post] total hip arthroplasty. His exam reveals hips working well, ” Tr. 394.

         On 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.

         In 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.

         In 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.

         Also in 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”).[6] 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.

         In 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, [7] and obesity. In his office note, Dr. Mitz endorsed Venus's goal of losing weight.

         In 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.

         The 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.

         In his 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;[8](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.[9] 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.[10] 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.

         In November of 2015, Venus was diagnosed with a gallbladder polyp. The next month, he had a laparoscopic cholecystectomy, [11] and subsequent pathology led to a diagnosis of chronic cholecystitis.[12]

         After 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)).

         At 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.

         However, 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 functional capacity:

[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.

         After the hearing, the ALJ issued a decision in which he determined that Venus

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.


         Then, 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 hands.[13]

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.[14] On that basis, the ALJ determined that Venus was not disabled.

         III. Discussion

         A. The Legal Framework

         To be 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 ...

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