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Lord v. Berryhill

United States District Court, D. New Hampshire

July 23, 2019

Rosemarie Lord
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         Rosemarie 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 be affirmed.

         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). 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 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 curiam).

         II. Background

         Lord 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”).

         In April of 2015, Lord was given a consultative physical examination by Dr. Ralph Wolf.[1] Dr. Wolf diagnosed Lord with eight conditions, including lateral epicondylitis in each elbow, [2]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 recommended.

         Administrative Transcript (hereinafter “Tr.”) 407.

         In May 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”).[3] 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.

         In 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.

         In 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.[4] 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.

         Dr. 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.

         The SSA 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.

         After 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.

         III. Discussion

         A. The Legal Framework

         To be 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.

         To 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 granted.

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).

         At the 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)).[5] 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 experience.

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 Cir. 1982)).

         B. Lord ...


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