United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
Lord moves to reverse the decision of the Acting Commissioner
of the Social Security Administration (“SSA”) to
deny her 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”), should
Scope of Review
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). 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).
addition, “‘the drawing of permissible inference
from evidentiary facts [is] 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.'” Purdy, 887
F.3d at 13 (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
was born in 1965. She has worked as a bartender and as a
retail sales clerk, but stopped working in December of 2013.
In February of 2015, Lord applied for DIB, claiming that
since December 31, 2013, she has been disabled as a result of
tennis elbow on the right side, carpel tunnel syndrome
(“CTS”), hypertension, gastroesophageal reflux
disease (“GERD”), asthma, and chronic obstructive
pulmonary disease (“COPD”).
April of 2015, Lord was given a consultative physical
examination by Dr. Ralph Wolf. Dr. Wolf diagnosed Lord with
eight conditions, including lateral epicondylitis in each
elbow, possible bilateral CTS, COPD, hypertension,
depression, and GERD. Under the heading
“Recommendations, ” he wrote:
Any full-time activity not involving repetitive lifting and
gripping with the arms should be possible now and for the
long-term future. Most standing and walking activities as
well as most sitting and driving activities should be
possible now and for the long- term future. Because of
continuing elbow and wrist pain, heavy manual labor and
lifting and carrying more than 10 pounds regularly is not
Transcript (hereinafter “Tr.”) 407.
of 2015, Dr. Natacha Sochat, a state-agency consultant who
did not examine Lord, reviewed her medical records and
assessed her physical residual functional capacity
(“RFC”). According to Dr. Sochat, Lord could lift
and/or carry and could push and/or pull 20 pounds
occasionally and 10 pounds frequently, could stand and/or
walk (with normal breaks) for about six hours in an
eight-hour workday, and could sit (with normal breaks) for
about six hours in an eight-hour workday. Beyond that, Dr.
Sochat identified no postural, manipulative, visual,
communicative, or environmental limitations.
August of 2015, Lord was given a consultative psychological
examination by Dr. Denise Moquin. Dr. Moquin diagnosed Lord
with a premorbid major depressive disorder and “an
unspecified personality disorder, with borderline and
dependency traits, ” Tr. 415. However, because the
ALJ's evaluation of Dr. Moquin's opinion is not at
issue, there is no need to describe that opinion in detail.
March of 2016, Dr. Craig Stenslie, a state-agency consultant
who did not examine Lord, reviewed her medical records and
conducted a psychiatric review technique (“PRT”)
assessment. After acknowledging diagnoses of affective
disorders and personality disorders, Dr. Stenslie found,
among other things, that Lord had moderate restrictions on
her activities of daily living, moderate difficulties in
maintaining social functioning, moderate difficulties in
maintaining concentration, persistence or pace, and had one
or two repeated episodes of decompensation, each of extended
duration. Those four analytical categories, in turn, reflect
the so-called paragraph B criteria that appeared in the
definitions of mental impairments in the SSA regulations, up
until January 17, 2017, when a new set of definitions, with
new paragraph B criteria, went into effect.
Stenslie also assessed Lord's mental RFC. He opined that
Lord had no limitations in the realm of understanding and
memory and no limitations in the realm of social interaction.
With respect to the realm of sustained concentration and
persistence, he opined that Lord was not significantly
limited in four of eight abilities, but was moderately
limited in the other four: (1) carrying out detailed
instructions; (2) performing activities within a schedule,
maintaining regular attendance, and being punctual within
ordinary tolerances; (3) working in coordination with or in
proximity to others without being distracted by them; and (4)
completing a normal workday and workweek without
interruptions from psychologically based symptoms and
performing at a consistent pace without an unreasonable
number and length of rest periods. With respect to the realm
of adaptation, Dr. Stenslie opined that Lord was not
significantly limited in three of four abilities but was
moderately limited in her ability to respond appropriately to
changes in the work setting.
denied Lord's application for DIB. She appealed that
decision and received a hearing before an ALJ. At the
hearing, the ALJ took testimony from a vocational expert
(“VE”) to whom he posed a series of hypothetical
questions. The first question posited “a hypothetical
individual of the claimant's same age and education and .
. . past jobs, ” Tr. 55, with a limitation to light
work, to performing simple routine tasks, and to dealing with
only routine changes in the work setting. The VE testified
that such a person could not perform Lord's previous work
but could perform the jobs of cafeteria attendant, price
marker, and production sorter. The VE further testified that
no work would be available to a person with the foregoing
limitations plus any one of the following: (1) a limitation
to occasional “reaching overhead [with] both arms [and]
reaching all the planes [with] both arms, ” Tr. 56; (2)
“be[ing] off task up to 15 percent of the day due to
issues of chronic pain and mental health symptoms, ”
Tr. 57; or (3) having “an inability to maintain a
schedule or consistent attendance, ” Tr. 58.
the hearing, the ALJ issued a decision in which he determined
that Lord had four severe impairments, bilateral lateral
epicondylitis, CTS, depression, and personality disorder, but
also determined that none of those impairments, either alone
or in combination, met or equaled the severity of any of the
impairments included in the SSA's list of impairments
that are per se disabling. Then he assessed Lord's RFC
and found that she had
the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except [she] has the residual
functional capacity to perform less than [the] full range of
light work except lifting 20 pounds occasionally and 10
pounds frequently; carrying 20 pounds occasionally and 10
pounds frequently; sitting for six hours; standing for six
hours, walking for six hours; push/pull as much as can
lift/carry. Limited to performing simple, routine tasks and
when dealing with changes in work setting the individual can
only deal with routine changes only.
Tr. 16. Based upon the foregoing RFC and the VE's
testimony, the ALJ determined that Lord was not able to
perform her past work but was capable of performing the
unskilled jobs of cafeteria attendant, price marker, and
sorter. Accordingly, the ALJ determined that Lord was not
under a disability from December 31, 2013, through the date
of his decision, April 26, 2017.
The Legal Framework
eligible for disability insurance benefits, 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). The
only question in this case is whether the ALJ correctly
determined that Lord was not under a disability from December
31, 2013, through April 26, 2017.
decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ
a five-step sequential evaluation process. See 20
C.F.R. § 404.1520.
The steps are: 1) if the [claimant] is engaged in substantial
gainful work activity, the application is denied; 2) if the
[claimant] does not have, or has not had within the relevant
time period, a severe impairment or combination of
impairments, the application is denied; 3) if the impairment
meets the conditions for one of the “listed”
impairments in the Social Security regulations, then the
application is granted; 4) if the [claimant's]
“residual functional capacity” is such that he or
she can still perform past relevant work, then the
application is denied; 5) if the [claimant], given his or her
residual functional capacity, education, work experience, and
age, is unable to do any other work, the application is
Purdy, 887 F.3d at 10 (quoting Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); citing 20
C.F.R. § 416.920, which outlines the same five-step
process as the one prescribed in 20 C.F.R. § 404.1520).
first four steps in the sequential evaluation process, the
claimant bears both the burden of production and the burden
of proof. See Purdy, 887 F.3d at 9 (citing
Freeman v. Barnhart, 274 F.3d 606, 608 (1st
Cir. 2001)); see also Bowen v. Yuckert, 482
U.S. 137, 146 (1987). She must prove she is disabled by a
preponderance of the evidence. See Mandziej v.
Chater, 944 F.Supp. 121, 129 (D.N.H. 1996) (citing
Paone v. Schweiker, 530 F.Supp. 808, 810-11 (D.
Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including: (1)
objective medical facts; (2) [claimant]'s subjective
claims of pain and disability as supported by the testimony
of the claimant or other witness; and (3) the
[claimant]'s educational background, age, and work
Mandziej, 944 F.Supp. at 129 (citing Avery v.
Sec'y of HHS, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Sec'y of HHS, 690 F.2d 5, 6 (1st