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Sinclair v. Berryhill

United States District Court, D. Massachusetts

July 21, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant. Functional Limitations Funa Opinion Hypo 1 Hypo 2 Hypo 3 Sinclair Att'y Hypo




         Suzanne Sinclair (“Sinclair”) brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), appealing the final decision of the Acting Commissioner of Social Security (“Commissioner”), [1] denying disability insurance benefits and supplemental security income (collectively, “disability benefits”). Compl. ¶ 1, ECF No. 1. Sinclair alleges that substantial evidence does not support the hearing officer's[2] decision, and the Commissioner's subsequent affirmation of that denial constitutes legal error. Id. ¶ 3.

         Specifically, Sinclair contests: (1) the Social Security Administration Appeals Council's (“Appeals Council”) finding that she did not have a medically determinable fibromyalgia impairment, (2) the residual functional capacity determination, and (3) the step-five conclusion that Sinclair could perform other work. Mot. Reverse (Incorporated Mem. Law) (“Pl.'s Mem.”) 5, 14, ECF No. 14. The Commissioner argues that substantial evidence supports the Appeals Council's conclusions, and thus asks this Court to affirm the decision. Mem. Law Supp. Def.'s Mot. Affirm Commissioner's Decision (“Def.'s Mem.”) 1, ECF No. 17. For the reasons explained below, the Court remands this matter for further proceedings.

         A. Procedural History

         On November 9, 2012, Sinclair applied for disability insurance benefits, Administrative R. (“Admin. R.”)[3] 226-29, and supplemental security income, id. at 230-40. Sinclair's applications were initially denied on February 12, 2013, id. at 120-21, and again upon reconsideration on June 10, 2013, id. at 148-55, 163-68. At Sinclair's request, a hearing was held on June 17, 2014. Id. at 82-83. In addition to Sinclair's testimony, id. at 44-70, the hearing officer elicited testimony from a vocational expert, id. at 70-77. Then, in a written decision issued on September 26, 2014, the hearing officer found that Sinclair is not disabled. Id. at 11-35.

         On November 24, 2014, Sinclair requested that the Appeals Council review the hearing officer's decision. Id. at 9-10. In anticipation of the Appeals Council's review, Sinclair supplemented the record with an affidavit from a vocational expert, David Meuse (“Meuse”). Id. at 359-63. On March 17, 2016, the Appeals Council upheld the hearing officer's decision and issued the Commissioner's final decision denying Sinclair disability benefits. Id. at 1-8.

         On May 13, 2016, Sinclair filed a complaint in this Court seeking judicial review of the Commissioner's denial. Compl. The Commissioner filed an answer, Answer, ECF No. 11, and the administrative record on September 23, 2016, Admin R. Sinclair subsequently moved to reverse the Commissioner's decision. Pl.'s Mem. 1. On January 13, 2017, the Commissioner filed a motion to affirm the Commissioner's decision and a supporting memorandum. Def.'s Mot. Affirm, ECF No. 16; Def.'s Mem. 1. Sinclair responded to the Commissioner's motion on February 27, 2017. Pl.'s Resp. Def. Commissioner's Mot. Affirm (“Pl.'s Resp.”), ECF No. 23. On March 10, 2017, this Court heard oral arguments[4] and took the matter under advisement. Electronic Clerk's Notes, ECF No. 25

         B. Factual Background

         Sinclair was born on November 18, 1967. Admin. R. 226, 230. She worked as a tissue paper packer, id. at 22, 49, 354-55, until April 15, 2007, when she was laid off, id. at 50-51, 226, 230, 257. Sinclair contends that the disabling effects of her impairments contributed to her stopping work. Id. at 257.

         She alleges that she suffers from a number of debilitating conditions: degenerative changes of the lumbar, thoracic, and cervical spine; radiculopathy; fibromyalgia; plantar fasciitis; migraine headaches; gastroesophageal reflux disorder; carpal tunnel syndrome; shoulder impairment; and obesity. Id. at 257, 355-56; Pl.'s Mem. 1.

         The record includes opinions from Sinclair's treating physicians, Dr. John Harrington (“Dr. Harrington”), Admin. R. 562-63, and Dr. Danilo Funa (“Dr. Funa”), id. at 853-56. Dr. Harrington described Sinclair's limitations generally: “She finds it very difficult . . . to get around due to her back pain.” Id. at 562. Dr. Funa completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) form. Id. at 853-56. As Dr. Funa's opinion is particularly significant to Sinclair's appeal, the Court discusses this assessment in detail.

         Dr. Funa checked boxes on the Medical Source Statement form to indicate the functional implications of Sinclair's maladies. Based on those answers, Dr. Funa opined that Sinclair could lift or carry less than ten pounds frequently and up to ten pounds occasionally. Id. at 853. Dr. Funa reported that Sinclair could stand or walk for less than two hours in an eight-hour work day. Id. He also indicated that Sinclair's condition(s) required her to alternate periodically between sitting and standing. Id. at 854. Due to shoulder pain, Sinclair had limited ability to push or pull with her upper extremities. Id. Dr. Funa marked that Sinclair's manipulative abilities, including reaching overhead, were unlimited. Id. at 855. Finally, Dr. Funa concluded that Sinclair had no attention or concentration issues. Id. Although the form asks physicians to explain and “describe the factors that support” the limitations selected -- specifically when physicians choose the lowest exertional levels for lifting, carrying, standing, and walking -- Dr. Funa did not elaborate on his opinions. Id. at 853.


         A. Standard of Review

         This Court is bound to uphold the final decision of the Commissioner regarding disability benefits so long as the Commissioner did not commit legal error and the Commissioner's findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); see also Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). Substantial evidence is “more than a mere scintilla [of relevant evidence that] a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).

         It is the role of the hearing officer, not this Court, “to draw factual inferences, make credibility determinations, and resolve conflicts in the evidence.” Woodie v. Colvin, 190 F.Supp.3d 242, 246 (D. Mass. 2016) (citing Irlanda Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)); see also Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001)(“[T]he responsibility for weighing conflicting evidence, where reasonable minds could differ as to the outcome, falls on the Commissioner and his designee . . . . It does not fall on the reviewing court.” (citation omitted)). Accordingly, the Court must affirm the Commissioner's decision “even if the record arguably could justify a different conclusion.” Rodriguez Pagan v. Secretary of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). Questions of law, however, are subject to de novo review. Seavey, 276 F.3d at 9.

         B. Disability under the Social Security Act

         Under the Social Security Act (“Act”), an individual is disabled if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Administration conducts a five-step sequential evaluation to determine whether a claimant satisfies the Act's definition of disabled:

(1) Whether the claimant is engaged in substantial gainful activity;
(2) Whether the claimant has a severe impairment;
(3) Whether the impairment meets or medically equals an impairment listed under 20 C.F.R. Part 404, Subpart P, Appendix 1, and meets the duration requirement;
(4) Whether the claimant has the residual functional capacity to perform his past relevant work; and
(5) Whether the impairment prevents the claimant from doing any other work, considering the claimant's age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920 (4)(i)-(v). The applicant bears the burden of proof for the first four steps; the burden shifts to the Commissioner at step five. Bowen v. Yucker, 482 U.S. 137, 146 n.5 (1987); Vega v. Colvin, 164 F.Supp.3d 249, 256 (D. Mass. 2016).


         A. The Hearing Officer's Decision

         The hearing officer proceeded through the five-step sequential analysis to determine whether Sinclair is entitled to disability benefits. She found that Sinclair was insured through December 31, 2012 and has not engaged in substantial gainful activity since April 2007, the date of alleged disability onset. Id. at 17. At the second step, the hearing officer found that Sinclair suffers from three severe impairments: degenerative changes of her spine (lumbar, thoracic, and cervical) with radiculopathy, plantar fasciitis, and obesity. Id. The hearing officer also acknowledged Sinclair's non-severe impairments: headaches/ migraines, gastroesophageal reflux disorder, and carpal tunnel syndrome, id., but determined that Sinclair does not suffer from a medically determinable impairment of fibromyalgia, id. at 19. At step three, the hearing officer concluded that Sinclair does not have an impairment, or combination of which, that equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 19-20.

         Before continuing to step four, the hearing officer assessed Sinclair's residual functional capacity. Id. at 20. The hearing officer determined that Sinclair had the residual functional capacity to perform sedentary to light work with the additional limitation that “she must alter sitting and standing at will.” Id. at 20, 23. The hearing officer found that Sinclair could stand and walk for up to two hours in an eight-hour workday, and carry or lift up to twenty pounds occasionally and ten pounds frequently. Id. at 20. The hearing officer also acknowledged that Sinclair could not reach overhead. Id. Given Sinclair's residual functional capacity, the hearing officer concluded that Sinclair was unable to perform her past relevant work as a packer. Id. at 33.

         At step five, however, the hearing officer determined that there are other jobs Sinclair could perform. Id. at 33-34, 72. The hearing officer explained that a claimant with a functional capacity for the full range of light work would lead to a “not disabled” ruling, but Sinclair's additional limitations required further consideration as to what “other” work she could perform. Id. at 34. As such, the hearing officer posed three hypothetical scenarios to the vocational expert.[5] Id. at 71-75. All of the hypotheticals accommodated the need to alternate between sitting and standing at will. Id. Additionally, each hypothetical individual could frequently lift and carry ten pounds and occasionally twenty pounds. Id. In the first hypothetical, the individual could sit, stand, and walk for six hours, reach overhead occasionally, and climb stairs. Id. at 72. According to the vocational expert, an individual with those limitations could be an office helper, information clerk, or inspector. Id. at 34, 72-73. All of those positions, the expert explained, are light duty jobs with a specific vocational preparation (“SVP”) rating[6] of one or two. Id. at 72-73. The vocational expert also supplied job incident numbers based on labor statistics to show that these jobs existed in significant numbers nationally and locally. Id.

         Modifying the first hypothetical to create a second scenario, the hearing officer asked the vocational witness about an individual who could stand or walk for up to two hours, could not reach overhead, could occasionally stoop and climb stairs, but could not crouch or kneel. Id. at 73. The vocational expert opined that an individual with these limitations could perform the positions of telephone clerk (DOT 237.367-046), office clerk (DOT ...

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