United States District Court, D. New Hampshire
A. DiClerico, Jr., United States District Judge.
Guay seeks judicial review, pursuant to 42 U.S.C. §
405(g), of the Commissioner’s decision denying her
applications for disability insurance benefits under Title II
and supplemental security income under Title XVI. In support,
she contends that the Administrative Law Judge
assessed her residual functional capacity and failed to meet
the Commissioner’s burden at Step Five of the
sequential analysis used in social security decisions. The
Commissioner moves to affirm.
of Review In reviewing the final decision of the Commissioner
in a social security case, the court “is limited to
determining whether the ALJ deployed the proper legal
standards and found facts upon the proper quantum of
evidence.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d
1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings if they are supported by substantial
evidence. § 405(g); Fischer v. Colvin, 831 F.3d
31, 34 (1st Cir. 2016).. Substantial evidence is “more
than a scintilla of evidence” but less than a
preponderance. Purdy v. Berryhill, 887 F.3d 7, 13
(1st Cir. 2018). The court must affirm the ALJ’s
findings, even if the record could support a different
conclusion, when “a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as
adequate to support [the ALJ’s] conclusion.”
Irlanda Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal
quotation marks omitted); accord Purdy, 887 F.3d at
determining whether a claimant is disabled for purposes of
social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. §§ 404.1520 &
416.920. The claimant bears the burden through the
first four steps of proving that his impairments preclude him
from working. Purdy, 887 F.3d at 9. At the fifth
step of the sequential analysis, the Commissioner bears the
burden to show that a claimant can do work other than her
past work. § 404, 1520(a)(4); Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987); Heggarty v. Sullivan,
947 F.2d 990, 995 (1st Cir. 1991).
February of 2015, Catherine Guay injured her index and
“long” fingers on her left hand, her dominant
hand, when she tried to unblock a snowblower. Although the
wounds healed, her fingers remained stiff and painful with
limited range of motion. She also had previously experienced
anxiety and depression, related to aortic bypass surgery,
which increased after the injury to her fingers.
returned to her job at a taxicab company after she injured
her fingers. In September of 2015, she left the cab company
and worked as an assembler for a medical device company. She
left that job a year later because of pain in her left
(injured) hand. During that time, she was treated by Dr.
Heaps at the New Hampshire Orthopaedic Center and PCP APRN
Odonell at St. Joseph’s Hospital.
September 30, 2016, Guay filed applications for disability
insurance benefits and supplemental security income. Guay had
examinations by consultative medical examiners, as requested
by the Social Security Administration.
hearing before an ALJ was held on October 26, 2017. Guay and
a vocational expert testified at the hearing. The ALJ posed a
hypothetical question of a person limited to light work, with
the top weight being twenty-five pounds lifted with the right
nondominant arm. The hypothetical excluded use of ladders,
ropes, and scaffolds; allowed occasional use of stairs; and
excluded fine motor use of the left dominant hand for
punching and gripping. In response, the vocational expert
said that person could not do any of Guay’s past work.
The vocational expert also testified that a person who could
not handle with her dominant hand would be precluded from all
work at the light and sedentary exertional levels.
continued the hearing in order to have a medical expert
testify. The hearing resumed on February 1, 2018. Guay
testified at the hearing, along with an orthopedic surgeon,
Dr. Darius Ghazi, M.D., and a different vocational expert.
Dr. Ghazi testified that the injury to Guay’s fingers
caused them not to function which interfered with the
function of her left hand. Because of that condition, Dr.
Ghazi said that Guay could not do anything bi-manually.
Otherwise, her functional capacity depended on how well she
could use her left hand. The ALJ did not let Dr. Ghazi
testify about mental issues that would affect Guay’s
motivation for rehabilitation. He said that Guay could climb
stairs, but not a ladder, and should avoid hazards.
described a hypothetical person to the vocational expert as
one who could do light work but had to avoid hazards,
ladders, ropes, and scaffolds, and crawling and was limited
to rare use of her left, dominant, hand for fingering or
handling. The vocational expert said the person could not do
Guay’s past work. She identified jobs that the person
could do, which were furniture rental clerk, usher, and
school bus monitor.
respect to the furniture rental clerk and usher, the
vocational expert clarified that the Dictionary of
Occupational Titles (“DOT”) described them as
requiring occasional rather than only rare use of the hands
but did not specify which hand would be used or whether both
hands were necessary. Based on that lack of specificity, the
vocational expert thought the furniture rental clerk and
usher jobs could be performed with the nondominant hand. She
qualified her response further by saying that there was a
very limited base of those jobs.
attorney represented to the vocational expert that Guay had
testified during the previous part of the hearing, where a
different vocational expert appeared, that she could not
write with her right hand or use a keyboard mouse with her
right hand. In response, the vocational expert said that
those limitations would eliminate the furniture rental clerk
job. She also said, however, that the usher job “could
perhaps still be performed” depending on her ability to
accommodate the lack of use of her left hand with her
nondominant right hand. Doc. 8-2 at 54. The
vocational expert acknowledged that the school bus monitor
job could require use of both hands and that only a small
number of jobs were available.
issued a decision on February 14, 2018. The ALJ found that
Guay had a severe impairment because of a swan neck deformity
of her index finger and a malunion of her long finger on her
left dominant hand. Despite that severe impairment, the ALJ
found that Guay retained the functional capacity to perform
light work except that she could use her left hand only
rarely for fingering or handling, less than 5% of the work
day; could not climb ladders, ropes, or scaffolds; and needed
to avoid all hazards. Based on the second vocational
expert’s testimony, the ALJ found ...