UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Roger Wilkins, Jr.

v. Case No. 17-cv-454-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Richard Wilkins moves to reverse the decision of the Acting

Commissioner of the Social Security Administration (“SSA”) to

deny his application for Social Security disability insurance

benefits, or DIB, under Title II of the Social Security Act,

. The Acting Commissioner, in turn, moves for an

order affirming her decision. For the reasons that follow, this

matter is remanded to the Acting Commissioner for further

proceedings.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

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 . . . .

1

(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,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(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,

(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.,

(1st Cir. 1981) (per curiam).

Purdy v. Berryhill,

(1st Cir. 2018).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 10, is part of the court’s

record and will be summarized here, not repeated in full.

Wilkins was born in 1964. He last worked in March of 2013,

installing exterior trim and siding. In October of 2013, he

fell off a ladder, and when he went to the doctor shortly

thereafter, an MRI indicated a partial tear of the subscapularis

2 tendon, tendonitis, and a partial tear of the myotendinous

junction. In November of 2013, Wilkins injured a hip in a motor

vehicle accident. Based upon a diagnosis of avascular necrosis, 1

he underwent a left-hip arthroplasty in February of 2013. 2

Wilkins applied for DIB in March of 2015, claiming that he

had been disabled since March of 2013, because of arthritis in

his hip and back, hip-replacement pain, shortness of breath, and

asthma. He later amended the alleged onset date of his

disability to November 27, 2013.

In June of 2015, Dr. Marcia Lipski, a non-examining state-

agency consultant, assessed Wilkins’s physical residual

functional capacity (“RFC”). 3 In terms of exertional capacity,

Dr. Lipski opined that Wilkins could: (1) lift and/or carry 10

1 Avascular necrosis is the “[p]athological death of one or more cells, or of a portion of tissue or organ, resulting from irreversible damage” which is caused by “deficient blood supply.” Stedman’s Medical Dictionary 1284, 1285 (28th ed. 2006).

2 Arthroplasty is defined as the “[c]reation of an artificial joint,” and as “[a]n operation to restore as far as possible the integrity and functional power of a joint.” Stedman’s, supra note 1, at 161.

3 “An applicant’s residual functional capacity ‘is the most [he or she] can still do despite [his or her] limitations.’” Purdy,

n.2 (quoting

(a)(1), a regulation governing claims for supplemental security income that is worded identically to

(a), which governs claims for DIB) (brackets in the original).

3 pounds frequently and 20 pounds occasionally; 4 (2) stand and/or

walk, with normal breaks, for a total of about six hours in an

eight-hour work day; (3) sit, with normal breaks, for about six

hours in an eight-hour work day; and (4) push and/or pull the

same amount he could lift and/or carry. In terms of postural

limitations, Dr. Lipski opined that Wilkins had an unlimited

capacity for balancing, but could only occasionally: (1) climb

ramps and stairs; (2) climb ladders, ropes, and scaffolds; (3)

stoop; (4) kneel; (5) crouch; and (6) crawl. Finally, Dr.

Lipski opined that Wilkins had no manipulative, visual,

communicative, or environmental limitations.

In August of 2015, Jason Dorran, a physician’s assistant,

completed a Physical Residual Functional Capacity Questionnaire

in which he opined that Wilkins’s experience of pain or other

symptoms would often interfere with his attention and

concentration. However, P.A. Dorran declined to offer opinions

on any specific functional capacities, stating that “[f]or

objective limitations/restrictions, [Wilkins] would need a

functional capacity evaluation.” Administrative Transcript

(hereinafter “Tr.”) 458.

4 The form that Dr. Lipski completed defines “occasional” as “cumulatively 1/3 or less of an 8 hour day.” Administrative Transcript 66.

4 In April of 2016, Todd Karalius, an advanced practice

registered nurse who had treated Wilkins, wrote a letter

addressed to whom it may concern in which he stated:

Based on my examination of Mr. Wilkins and a review of his file, it is my opinion that he meets Listing 1.03 for reconstructive surgery of a major weight-bearing joint. Specifically post surgery on his left hip he cannot ambulate effectively, as defined in 1.00B2b, and is not expected to return to effective ambulation within 12 months. He is not expected to be able to walk a block at a reasonable pace on rough or uneven surfaces; or climb a few steps at a reasonable pace with the use of a single hand rail.

Tr. 572.

In early June of 2016, Danielle Amero, an occupational

therapist, administered a Key Whole Body Assessment and

determined that Wilkins could: (1) sit for one to two hours in a

work day, in 25-minute increments; (2) stand for one hour in a

work day, in five-minute increments; and (3) walk for one to two

hours in a work day, for occasional short distances. With

respect to postural activities, Ms. Amaro found that Wilkins

could: (1) climb stairs minimally/occasionally; 5 (2) balance

minimally/ occasionally; (3) stoop minimally/occasionally; (3)

5 The form that Ms. Amero completed defines “minimally occasional” as one to five percent of a work day, or up to 30 minutes. See Tr. 593.

5 kneel occasionally; 6 (4) not crouch at all; and (5) crawl

continuously.

After the SSA denied Wilkins’s application, he received a

hearing before an Administrative Law Judge (“ALJ”). The ALJ did

not take testimony from a vocational expert (“VE”). On August

31, 2016, the ALJ issued a decision in which she found that

Wilkins: (1) had one severe impairment, “status post left total

hip replacement,” Tr. 27; but (2) did “not have an impairment or

combination of impairments that [met] or medically equal[ed] the

severity of one of the listed impairments” in the applicable

Social Security regulations, Tr. 29. In her discussion of

Wilkins’s RFC, the ALJ said that she “afforded significant

weight,” Tr. 31, to Dr. Lipski’s opinion, and she gave Wilkins

the following RFC:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except [he] cannot climb ladders/ropes/scaffolds and he cannot crawl or crouch. He needs to avoid exposure to unprotected heights.

Tr. 29-30.

While Dr. Lipski had opined that Wilkins could occasionally

climb ladders, ropes, and scaffolds, and could occasionally

crouch and crawl, the ALJ found that he could not perform any of

6 The form that Ms. Amero completed defines “occasional” as six to thirty-three percent of a work day, or between 30 minutes and two and one half hours. See Tr. 593.

6 those postural activities at all. And while Dr. Lipski opined

that Wilkins could only occasionally climb ramps and stairs,

stoop, and kneel, the ALJ, by imposing no limitations on those

three postural activities, necessarily found that Wilkins had an

unlimited capacity to perform them. However, for reasons that

are unclear, the ALJ provided no explanation for her numerous

deviations from Dr. Lipski’s RFC assessment.

In any event, in light of the RFC she gave Wilkins, the ALJ

determined that he could not perform his past relevant work, but

could perform “jobs that exist in significant numbers in the

national economy.” Tr. 32. She explained her decision this

way:

If the claimant had the residual functional capacity to perform the full range of light work, considering [his] age, education, and work experience, a finding of “not disabled” would be directed by Medical- Vocational Rule 202.21 and Rule 201.14. However, the additional limitations have little or no effect on the occupational base of unskilled light work. A finding of “not disabled” is therefore appropriate under the framework of these rules (See: SSR-85-15 establishing that such limitations have little effect on the occupational base of light work).

Tr. 32 (emphasis in the original).

Wilkins appealed his unfavorable decision to the SSA’s

Appeals Council (“AC”). He filed three new pieces of evidence

with the AC: (1) a September 9, 2016, letter from a physician’s

assistant opining that he had severe limitations on his

capacities for sitting, standing, and walking and “that he would

7 not be able to perform any gainful employment,” Tr. 11; (2) a

September 9, 2016, prescription for a cane, for “use as needed,”

Tr. 10; and (3) a record from a March 31, 2016, MRI of his

lumbar spine which led to an impression of “[d]egenerative

changes and degenerative disc disease,” Tr. 8, and a diagnosis

of “ankylosing spondylitis of [the] thoracolumbar region,”

7

The AC denied Wilkins’s appeal, and also ruled that: (1) the MRI

report and the letter from the physician’s assistant did “not

show a reasonable probability that [they] would change the

outcome of the [ALJ’s] decision,” Tr. 2; and (2) the September

9, 2016, cane prescription did not affect the ALJ’s decision

that Wilkins was not disabled before August 31, 2016, because

the cane prescription did “not relate to the [time] period at

issue,”

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

7 Ankylosing spondylitis is “arthritis of the spine, resembling rheumatoid arthritis, which may progress to bony ankylosis with ossification of the anterior and posterior longitudinal ligament.” Stedman’s, supra note 1, at 1813. Ankylosis is “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.” Id. at 94.

8 a disability.

(a)(1)(A)-(D). The only question

in this case is whether the ALJ correctly determined that

Wilkins was not under a disability from November 27, 2013,

through August 31, 2016, which is the date of the ALJ’s

decision.

To decide whether a claimant is disabled for the purpose of

determining eligibility for disability insurance benefits, an

ALJ is required to employ a five-step sequential evaluation

process. See

.

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,

(quoting Seavey v. Barnhart,

(1st Cir. 2001); citing

, which outlines the

same five-step process as the one prescribed in

).

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,

(citing Freeman

9 v. Barnhart,

(1st Cir. 2001)); see also Bowen

v. Yuckert,

(1987). He must prove he is

disabled by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). However,

[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982). If the [claimant’s] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations.

; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in

; Heckler v. Campbell,

(1983). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity, age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in

. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust,

§ 200(e)) that restrict his [or her] ability to perform jobs he [or she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,”

.969a(d) (2001). See also Pratts v. Chater,

(2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).

Seavey,

(parallel citations omitted).

10 B. Wilkins’s Claims

Wilkins’s memorandum of law is brief and underdeveloped.

As best I can tell, and giving Wilkins the benefit of the doubt,

it appears that he is claiming that the ALJ erred by: (1)

failing to find, at step two of the sequential evaluation

process, that his back condition was a severe impairment; (2)

failing to find, at step three, that he had an impairment or

combinations of impairments that met or equaled the severity of

a listed impairment; and (3) making an RFC assessment that was

not supported by substantial evidence. 8 I agree with Wilkins

that the ALJ made a reversible error in assessing his RFC.

Wilkins claims that the ALJ’s RFC assessment is not

supported by substantial evidence because the ALJ: (1) failed to

address his need for a cane; (2) gave great weight to Dr.

Lipski’s opinion; and (3) failed to include several limitations

from Dr. Lipski’s opinion in his RFC.

Wilkins’s first claim is off the mark; the ALJ did mention

Wilkins’s use of a cane in his RFC assessment. Specifically,

8 Perhaps out of an abundance of caution, the Acting Commissioner has construed claimant’s memorandum of law as claiming that the three pieces of evidence he submitted to the AC, after the ALJ rendered her decision, require a remand. While I appreciate the Acting Commissioner’s caution, and am inclined to read claimant’s memorandum of law broadly, I see nothing in that memorandum that suggests a claim that the post- decision evidence requires a remand. Accordingly, I decline to address such a claim.

11 she noted that Wilkins did not have a prescription for a cane,

had been told by his doctors to stay active, and had engaged in

a variety of activities such as riding a mountain bike, cutting

firewood, and ice fishing, that militated against including a

cane-related limitation in his RFC. Thus, I am not persuaded by

Wilkins’s claim that the ALJ’s RFC is not supported by

substantial evidence because it does not include a cane-related

limitation.

Wilkins’s third claim, however, is persuasive and

dispositive. As noted, the ALJ gave great weight to Dr.

Lipski’s opinion. But the ALJ gave Wilkins an RFC that only

incorporated one of the seven postural limitations in Dr.

Lipski’s opinion, i.e., her opinion that Wilkins had an

unlimited capacity for balancing. As for the other six postural

activities, the ALJ found that Wilkins had: (1) less capacity

for three of them (crawling, crouching, and climbing ladders,

ropes, and scaffolds) than Dr. Lipski had found; and (2) an

unlimited capacity for the other three (kneeling, stooping, and

ramp-and-stair climbing), despite Dr. Lipski’s finding that

Wilkins could perform those activities only occasionally.

The ALJ’s finding that Wilkins had an unlimited capacity

for kneeling, stooping, and ramp-and-stair climbing is

unsupported by any expert opinion. That is a problem. As I

have recently explained:

12 An ALJ is a lay person when it comes to medical evidence, and therefore she “cannot ignore medical evidence or substitute [her] own views for uncontroverted medical opinion.” Nguyen [v. Chater], 172 F.3d [31,] 35 [(1st Cir. 1999)] (citing Rose v. Shalala,

(1st Cir. 1994)). Where medical experts state that a claimant has a particular limitation, an ALJ must accept that expert opinion unless there is another expert opinion that contradicts it.

Packer v. Berryhill, No. 17-cv-260-PB,

, at *3

(D.N.H. May 30, 2018).

Here, the ALJ either ignored Dr. Lipski’s opinions on

Wilkins’s capacities for kneeling, stooping, and ramp-and-stair

climbing, or consciously rejected them, without a countervailing

expert opinion. Either way, she erred. The Acting Commissioner

concedes that “[t]he ALJ did not adopt every limitation in [Dr.

Lipski’s] opinion,” Resp’t’s Mem. of Law (doc. no. 9-1) 6, and

she offers this justification: “[T]he assessed limitations were

reasonable under the deferential standard of review. A

reasonable mind could have relied in part on Dr. Lipski’s

opinion, and thus remand is not appropriate.”

The Acting

Commissioner’s argument is unavailing.

As a preliminary matter, I do not review RFC assessments to

determine whether they are reasonable. The question before me

is whether an ALJ’s RFC assessment, or any other factual

finding, is supported by substantial evidence.

13 Turning to the RFC assessment in this case, the ALJ adopted

some but not all of the limitations in Dr. Lipski’s opinion. An

ALJ’s selective adoption of limitations from a medical opinion

is not necessarily a problem because “an ALJ faced with two

conflicting medical opinions need not credit one or the other,

in its entirety, but is entitled to craft an RFC by selecting

individual functional capacities from both,” Bubar v. Astrue,

No. 11-cv-107-JL,

, at *5 (D.N.H. Dec. 5, 2011)

(citing Evangelista v. Sec’y of HHS,

(1st Cir.

1987)), R. & R. approved by

(Dec. 30, 2011).

But an ALJ is not entitled to do what the ALJ did here, which

was to replace three of Dr. Lipski’s limitations not with

limitations from a contradictory medical opinion, but with her

own view that Wilkins had an unlimited capacity for kneeling,

stooping, and stair-and-ramp climbing. See Packer,

, at *3. Indeed, while calling the ALJ’s RFC reasonable,

the Acting Commissioner does not even attempt to identify any

evidence supporting the kneeling, stooping, and stair-and-ramp

climbing components of the ALJ’s RFC, and my review of the

record reveals no opinion that posits any limitations on those

activities that are less restrictive than those in Dr. Lipski’s

opinion. In sum, by giving Wilkins an RFC that replaced several

limitations from Dr. Lipski’s opinion with limitations that lack

14 support from a contradictory medical opinion, the ALJ committed

an error that requires remand. See

IV. Conclusion

For the reasons given, the Acting Commissioner’s motion for

an order affirming her decision, document no. 9, is denied, and

Wilkins’s motion to reverse that decision, document no. 6, is

granted to the extent that the case is remanded to the Acting

Commissioner for further proceedings consistent with this order,

pursuant to sentence four of

(g). The clerk of

the court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

October 15, 2018

cc: Christopher G. Roundy, Esq. Robert J. Rabuck, Esq.

15