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Riel v. Berryhill

United States District Court, D. New Hampshire

January 25, 2019

Christopher Scott Riel
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Christopher Riel 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, this matter should be remanded to the Acting Commissioner.

         I. Scope of Review

         The scope of judicial review of the Acting Commissioner's decision is as follows:

         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 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, “the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the Acting Commissioner], 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 is summarized here, not repeated in full.

         Riel was born in 1971. When he was eight years old, he was struck by a car and sustained serious injuries to his left leg. Those injuries required nearly 20 operations, including skin grafts. The sites from which donor skin was removed have remained susceptible to infection ever since. In addition, at the hearing on his claims before an Administrative Law Judge (“ALJ”), claimant testified that he was sexually abused by his sister from the time he was three years old until the time he was seven.

         Riel served in the Army from 1990 through 1994, when he was honorably discharged. Thereafter, he worked both as an auto-repair service technician and as an auto-equipment installer. He last worked on June 5, 2013. He says he quit his job as a service technician due to a lack of concentration and a fear that poor work could result in “vehicle damage and/or loss of life.” Administrative Transcript (hereinafter “Tr.”) 336. He has also reported quitting a job because he could no longer meet its physical demands, and being fired from a job because of his “attitude.” At the time of his hearing in September of 2017, Riel had been homeless for approximately five years.

         Claimant has an extensive history of treatment for both physical and mental impairments. That history is well documented in the parties' Joint Statement and in their briefs. For the purpose of recommending a disposition of the parties' pending motions, it is sufficient to list the various diagnoses claimant has received. With respect to his physical condition, Riel has been diagnosed with, among other things, neck and back pain, mechanical back pain, stable but chronic left leg ulcers, knee and ankle pain, cervicalgia, [1] and low back pain secondary to degenerative changes complicated by significant psychosocial issues. With respect to his mental condition, he has been diagnosed with posttraumatic stress disorder (“PTSD”), moderate major depressive disorder, anxiety disorder, mood disorder/anxiety, sleep disturbance, and antisocial personality disorder.

         In December of 2015, Riel filed the applications for DIB and SSI that are the subject of the matter now before the court. In those applications, he claimed that he became disabled on January 2, 2013, due to depression; PTSD; anxiety; an injury to his left leg; arthritis in his knees, neck, and back; degenerative disc disease; and tendonitis in his right ankle. He later amended the date on which he claims to have become disabled, i.e., his alleged onset date (“AOD”), to June 5, 2013.

         1. Medical Opinions

         The record includes approximately a dozen opinions from medical professionals on Riel's physical and mental residual functional capacity (“RFC”).[2] Some of those opinions were prepared in the context of the applications that resulted in the decision now under appeal, while others were prepared in the context of one or more previous applications that were denied. The opinions relevant to this appeal are described below, to the extent necessary to support the legal analysis that follows.

         A. Physical RFC

         In April of 2013, about two months before his AOD in this case, and in connection with a previous application, Riel received a consultative physical examination.[3] In his report on that examination, Dr. Ralph Wolf made four diagnoses, including this one: “[e]arly degenerative arthritic changes - lumbar spine.” Tr. 528. Dr. Wolf described the following limitations:

Any full-time sitting or driving activity with a mild amount of walking should be possible now and for the long-term future. Because of the patient's early arthritic changes of the lumbar spine, heavy manual labor and prolonged weightbearing are not recommended. Lifting and carrying up to 10 pounds regularly is permitted.

Id.

         In March of 2016, Riel received a second consultative physical examination, in connection with the applications underlying this appeal. In his report on that examination, Dr. William Kirmes made several diagnoses, including these: (1) “[s]ome degenerative arthritis in [the] lower back and neck as seen on x-ray with evidence of some degenerative disc disease, ” Tr. 854; and (2) mechanical back pain. Dr. Kirmes described the following limitations:

Out of an eight-hour day, he can sit for four hours, stand for three hours, walk for one to two hours limited by knee pain and some lower back fatigue and pain. He can lift 35 pounds and carry 20 pounds. Bending is limited due to his knee pain.

Id.

         In May of 2016, Lori Fox, an advanced practice registered nurse (“APRN”), who had treated Riel, completed an Arthritis Medical Source Statement on him. In it, she opined that Riel could: (1) sit for 30 minutes at a time before needing to stand up; (2) stand for 15 minutes at a time before needing to sit down; (3) sit for less than two hours in an eight-hour workday; and (4) stand/walk for less than two hours in an eight-hour workday. She also opined that Riel was likely to be absent from work more than four days per month as a result of his impairments or treatment for them.[4]

         The SSA's processing of Riel's 2015 applications did not include an assessment of his physical RRC by a state-agency medical consultant. Rather, the physical RFC assessment reported on Riel's Disability Determination Explanation forms was completed by a single decisionmaker (“SDM”).[5] While the SDM's RFC assessment is of no moment, [6] it is worth noting that the SDM determined that Riel had two severe physical impairments, degenerative disc disease and osteoarthritis.

         B. Mental RFC

         The record includes several opinions on claimant's mental RFC, including those expressed in: (1) a mental RFC assessment by a non-examining state-agency psychological consultant, Dr. Lisa Fitzpatrick; and (2) two Mental Impairment Questionnaires completed by claimant's treating psychiatrist, Dr. Alexandre Blaivas.[7]

         In June of 2017, Dr. Blaivas, who had treated Riel for two months, completed a Mental Impairment Questionnaire. In it, he listed diagnoses of PTSD and depressive disorder, not otherwise specified (“NOS”). As clinical findings in support of his opinions, he listed depressed mood and constricted affect. Dr. Blaivas offered numerous opinions in his questionnaire, including his opinion that Riel would be absent from work more than four days per month because of his impairments or treatment for them, and indicated that he based that opinion on Riel's “poor history of appointment attendance due to both physical and emotional issues, ” Id. In March of 2017, Dr. Blaivas completed a second Mental Impairment Questionnaire. In it, he noted that he had seen Riel five times since April of 2016. He gave diagnoses of PTSD and depressive ...


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