UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James T. Briand

v. Civil No. 16-cv-313-PB Opinion No.

US Social Security Administration, Acting Commissioner, Nancy A. Berryhill

MEMORANDUM AND ORDER

James Briand challenges the Social Security

Administration’s decision to deny his claim for Supplemental

Security Income and Disability Insurance Benefits. Briand

argues that the Administrative Law Judge incorrectly formulated

his residual functional capacity by omitting a limitation that

requires Briand to periodically take a break from standing.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 14).

Because that joint statement is part of the court’s record, I do

not recount it here. I discuss facts relevant to the

disposition of this matter as necessary below. II. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

however, “to determining whether the ALJ used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

are not conclusive, however, if the ALJ derived his findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v. Chater,

(1st

Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

2 in the record. Irlanda Ortiz,

. It is the role

of the ALJ, not the court, to resolve conflicts in the evidence.

III. ANALYSIS

Briand is a 52-year-old man who previously worked as a

sandblaster, pipefitter, and hand cutter. See Tr. 2, 123, 153.

He alleges that he has been disabled since May 31, 2013. Tr.

375, 659.

In June 2013, Briand filed his first application for

benefits. Tr. 148. On June 16, 2014, an ALJ denied his claim.

Tr. 8. Briand then challenged the denial by filing an action in

this court over which Judge McCafferty presided. Tr. 424–39;

Briand v. Colvin,

. While that action was pending,

Briand filed new applications for benefits, alleging disability

since the day after the ALJ’s decision. Tr. 458–79. On May 27,

2015, a single decision-maker approved the new applications,

finding that Briand was disabled because his hip impairment met

a qualifying listing. Tr. 477–78.

In a decision issued the following month, Judge McCafferty

remanded Briand’s challenge to the denial of his 2013

application. Briand,

. Judge McCafferty

explained that an uncontroverted medical opinion limited Briand

to taking a break from standing every 30 minutes (the “sit/stand

limitation”), and the ALJ erred by omitting the limitation from

3 Briand’s residual functional capacity (“RFC”) assessment. Id.

at 14. The Appeals Council, in turn, remanded the case for

reconsideration by the ALJ. Tr. 442–43. The Appeals Council

also instructed the ALJ to evaluate whether to reopen the single

decision-maker’s approval of Briand’s 2014 applications. Tr.

442.

On remand, the ALJ held a hearing at which a vocational

expert, an orthopedic medical expert, and Briand testified. Tr.

373–402. On March 29, 2016, the ALJ issued a new decision

concluding that Briand was not disabled. Tr. 340–372. The ALJ

reopened the single decision-maker’s approval and specified that

the ALJ’s latest conclusions ran from the alleged onset date

through the date of the 2016 decision. Tr. 343–44, 362–63.

Briand then filed this action challenging the decision. Doc.

No. 1.

Briand argues, inter alia, that the ALJ erred by again

failing to include the sit/stand limitation in the RFC.

Although no such limitation was found by the orthopedic expert

who testified at the remand hearing, Briand observes that the

expert’s opinion was based strictly on Briand’s orthopedic

conditions, and the expert did not consider Briand’s other

medically determinable impairments and their functional

implications. In response, the Acting Commissioner acknowledges

the limited scope of the expert’s opinion, but argues that the

4 ALJ permissibly omitted the sit/stand limitation because

Briand’s non-orthopedic impairments were not severe. See Doc.

No. 12-1 at 12–13; see also Doc. No. 14 at 6. For the following

reasons, I conclude that the ALJ erred in formulating Briand’s

RFC.

A. Residual Functional Capacity

A claimant’s RFC is “the most [the claimant] can still do

despite [his] limitations.”

(a)(1). The ALJ

must “consider the combined effect of all of [a claimant’s]

impairments without regard to whether any such impairment, if

considered separately, would be of sufficient severity.”

(c) (2016) (since amended),

(d)(2)(b). If the ALJ finds “a medically severe combination

of impairments,” he must “consider the combined impact of the

impairments” in formulating the RFC. See

(d)(2)(b). The RFC is “based on all the relevant evidence in

[the] record.”

(a)(1). But the ALJ, as a

layperson, may not reject an uncontroverted medical opinion.

Nguyen,

.

In this case, as in the previous case, the ALJ found that

Briand could perform light work subject to certain limitations,

but omitted the sit/stand limitation. Because light work was

available to someone with the assigned RFC, the ALJ concluded

that Briand was not disabled. On appeal, I determine whether

5 the RFC assigned to Briand is free from legal error and

supported by substantial evidence. See Nguyen,

.

The ALJ’s prior decision gave “great weight” to the opinion

of consulting state physician Hugh Fairley, M.D., who reviewed

the record and opined on Briand’s RFC. Tr. 19–20. Dr. Fairley

found that Briand had three medically determinable impairments

that were severe: chronic venous insufficiency, obesity, and

peripheral neuropathy. Tr. 48–49, 53; Doc. No. 14 at 14. Dr.

Fairley also identified non-severe impairments of osteoarthritis

and sleep apnea. Tr. 49. Dr. Fairley concluded that Briand’s

impairments allowed him to perform light work, subject to

certain limitations. Tr. 19, 50–52. Among those limitations,

Dr. Fairley found that Briand must “periodically alternate

[between] sitting and standing to relieve pain and discomfort.”

Tr. 51. Dr. Fairley further specified: “Change stand to

walk/sit 1/2 hrly for a few minutes.” Tr. 51. In addition, Dr.

Fairley found that Briand must avoid exposure to hazards and

avoid concentrated exposure to vibration and extreme

temperatures. Tr. 52. The ALJ’s first decision incorporated

these environmental limitations into the RFC, but omitted the

sit/stand limitation. Tr. 17. Judge McCafferty remanded

because of this omission. Briand,

at 10–11, 14–15.

In the case before me, Briand argues that the ALJ “did not

fix the type of harmful errors [that] he had made previously and

6 which were identified” by Judge McCafferty. Doc. No. 10–1 at 7.

Indeed, the ALJ again omitted the sit/stand limitation. Tr.

355. The ALJ neither mentions this limitation when recounting

Dr. Fairley’s findings, nor justifies its omission when

explaining the newly assigned RFC. See Tr. 355–61. Rather, the

ALJ’s lone mention of the sit/stand limitation comes only at

step five of the sequential process, when the ALJ considers jobs

available to Briand. See Tr. 362. The ALJ nakedly asserts that

the sit/stand limitation identified by Dr. Fairley “is not

supported by the medical record as a whole.” Tr. 362.1

The Acting Commissioner advances two arguments to support

her contention that the ALJ permissibly omitted the sit/stand

limitation. See Doc. No. 12-1 at 12–13. Neither has merit.

The Acting Commissioner first argues that the ALJ permissibly

relied on the opinion of non-examining orthopedic expert John

Kwock, M.D., who testified at the remand hearing and omitted Dr.

Fairley’s sit/stand limitation. I disagree. An ALJ may not

“substitute his own views for [an] uncontroverted medical

opinion.” See Nguyen,

. Dr. Kwock’s opinion was

1 The ALJ never acknowledges his omission of the environmental limitations that were included in the first RFC assessment and identified by Dr. Fairley. Compare Tr. 17 with 355.

7 strictly limited.2 He did not consider whether Briand had non-

orthopedic impairments, let alone assess their functional

implications. Tr. 377–82. Rather, Dr. Kwock explicitly stated

that his opinion addressed only Briand’s osteoarthritis and

obesity. Tr. 377–79. That narrower opinion did not displace

the limitation identified by Dr. Fairley, who considered all of

Briand’s impairments and their functional effects.

Specifically, Dr. Fairley found that Briand had severe

impairments of chronic venous insufficiency, obesity, and

peripheral neuropathy, as well as non-severe impairments of

osteoarthritis and sleep apnea. Tr. 48–49, 53. In explaining

the sit/stand limitation, Dr. Fairley cited not merely Briand’s

obesity, but also his “venous incompetence with history of

varicose ulcers,” “stasis dermatitis,” “diabetic neuropathy,”

“history of syncope” (fainting), and “symptoms of claudication

[affecting] both calves.” Tr. 51. Accordingly, Dr. Fairley’s

opinion on these subjects remained uncontroverted. Because the

ALJ cannot “substitute his own views for uncontroverted medical

opinion,” Nguyen,

, the Acting Commissioner’s

first argument fails.

2 The Acting Commissioner has waived any argument that Dr. Kwock’s opinion was based on Briand’s venous insufficiency, diabetes, etc. See, e.g., Doc. No. 12-1 at 12–13. 8 The Acting Commissioner next argues that the ALJ

permissibly omitted the sit/stand limitation because Briand’s

non-orthopedic impairments imposed no more than “minimal

limitations on [his] ability to perform basic work activities

and were non-severe.” Doc. No. 12-1 at 13. This argument

misses the mark. An RFC assessment must be based on the

functional limitations imposed by all of a claimant’s medically

determinable impairments, both severe and non-severe, considered

in combination. See

(2016) (since

amended); Social Security Ruling 96–8p,

at *5

(July 2, 1996). Moreover, the ALJ is simply incorrect when he

writes that there is “no opinion . . . that these other

diagnoses are severe.” Tr. 347. As discussed, Dr. Fairley

reached an uncontroverted conclusion to the contrary. See Tr.

49–53; Doc. No. 14 at 14. In any event, “[a]s a lay person . .

. the ALJ was simply not qualified to interpret raw medical data

in functional terms . . . .” Nguyen,

. Although

additional medical records were admitted after Dr. Fairley’s

review, because those later findings “merely diagnose [the]

claimant’s exertional impairments and do not relate these

diagnoses to specific residual functional capabilities,” the ALJ

was not permitted to “make that connection himself.” Rohrberg

v. Apfel,

(D. Mass. 1998) (quoting

Rosado v. Sec’y of Health and Human Servs.,

, 292

9 (1st Cir. 1986)). Thus, the Acting Commissioner’s second

argument fails. Accordingly, I conclude that the ALJ erred in

formulating Briand’s RFC.3

B. The Errors Were Not Harmless

The Acting Commissioner also appears to argue that even if

the ALJ erred in formulating Briand’s RFC, any error was

harmless. I disagree.

The Acting Commissioner bore the duty at step five of

“coming forward with evidence of specific jobs in the national

economy that [Briand] can still perform.” Freeman v. Barnhart,

(1st Cir. 2001); see

(c).

In concluding that jobs were available to Briand, the ALJ relied

on the vocational expert’s testimony at the remand hearing. The

vocational expert testified that three light work jobs were

available to someone with the RFC assigned by the ALJ. See Tr.

362. But Judge McCafferty’s reasoning applies again with full

force: because the vocational expert’s testimony was predicated

on an RFC that was missing a material limitation, the ALJ lacked

substantial evidence for his conclusion at step five. See

Briand,

, 10–11, 13.

3 Because I remand on other grounds, I do not address Briand’s remaining arguments. See Doc. No. 10-1 at 2 & n.1 (reopening of 2014 disability determination), 10–11 (opinions by non-doctors), 15–20 (mental impairments), 20–23 (“other source” evidence); see also Briand v. Colvin,

, 3 n.1 (declining to address mental impairments). 10 The ALJ also posed an alternative hypothetical at the

remand hearing, but it too cannot justify his conclusion that

Briand was not disabled. The ALJ asked the vocational expert

whether jobs would be available to a hypothetical person who had

a “full light-work capacity” and faced only a sit/stand

limitation. Tr. 400. The vocational expert replied that

although the previously identified light-work jobs would not be

available, three sedentary jobs would be. Tr. 400. But this

alternative hypothetical departed in material ways from the RFCs

assigned both by the ALJ himself and doctors Kwock and Fairley.

Even putting aside the sit/stand limitation, the ALJ found that

Briand had other limitations that preclude a “full light-work

capacity.” See Tr. 355 (finding several such limitations); see

also Tr. 361 (recognizing that assigned RFC precludes “the full

range” of light work or “substantially all” of its

requirements). So did Dr. Kwock. See Tr. 379, 381. And so did

Dr. Fairley, whose additional limitations remained

uncontroverted. See Tr. 63–64. For example, Dr. Fairley

opined, and the ALJ found in his first decision, that Briand

faced environmental limitations requiring him to avoid hazards

and concentrated exposure to vibrations and extreme

temperatures. Tr. 17, 64. For these reasons, the alternative

hypothetical posed to the vocational expert did not furnish

substantial evidence for the ALJ’s conclusion that jobs were

11 available to Briand. Accordingly, I decline to find the ALJ’s

errors harmless.

IV. CONCLUSION

For the reasons set forth above, I grant Briand’s motion to

remand (Doc. No. 10) and deny the Acting Commissioner’s motion

to affirm (Doc. No. 12). The clerk is directed to enter

judgment accordingly and close the case, which I remand to the

Acting Commissioner for further administrative proceedings

consistent with this Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro____ Paul Barbadoro United States District Judge

August 28, 2017

cc: Janine Gawryl, Esq. Terry L. Ollila, Esq.

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