UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Carrie Hastings

v. Civil No. 17-cv-84-JL Opinion No.

Nancy A. Berryhil, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

At issue in this Social Security appeal is whether an

Administrative Law Judge erred when, after a remand, he

“reconsidered” his earlier finding that plaintiff Carrie

Hastings suffered from a severe impairment and denied her

application for disability benefits. Hastings has moved to

reverse the decision. See LR 9.1. The Acting Commissioner of

the SSA has cross-moved for an order affirming the ALJ’s

decision. See

After careful consideration of the parties’

memoranda, the administrative record and relevant cases, the

Court is persuaded that the ALJ exceeded the scope of the

remand. The court therefore grants Hastings’s motion and denies

the Acting Commissioner’s motion.

I. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner’s findings of fact, so long as they are supported

by substantial evidence,”

that is, “such evidence as a

reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

ALJ’s findings “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). The court therefore

“must uphold a denial of social security . . . benefits unless

‘the [Acting Commissioner] has committed a legal or factual

error in evaluating a particular claim.’” Manso-Pizarro v.

Sec’y of Health and Human Servs.,

(1st Cir. 1996)

(per curiam) (quoting Sullivan v. Hudson,

(1989)).

2 II. Background1

A. Prior proceedings

Hastings first applied for disability benefits in 2005,

alleging that she became disabled in 2001.2 After a hearing, ALJ

Klingebiel found that Hastings was not disabled3 within the

meaning of the Social Security Act.4 The Appeals Council vacated

that decision and remanded the case for a new hearing.5 ALJ

Klingebeil again denied Hastings’s claim.6 The Appeals Council

vacated the second denial and remanded the case for another

hearing.7 Following that hearing, ALJ Levin denied Hastings

1 Thecourt recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (doc. no. 16) is incorporated by reference.

2 Admin. R. at 91.

3 “Thelaw defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

(a).

4 Admin. R. at 82.

5 Id. at 82-83.

6 Id. at 62.

7 Id. at 48.

3 claim a third time.8 The Appeals Council denied Hastings’s

request for review.9

Hastings appealed the third denial to this Court. See

Hastings v. Colvin, Civ. No. 14-419-PB (D.N.H filed Sept. 26,

2014) (“Hastings I”). After the case had been pending for

approximately nine months, the Acting Commissioner filed an

assented-to motion “for entry of final judgment . . . with

reversal and remand of the cause to the defendant.”10 The court

granted the motion, adopting the Acting Commissioner’s

instructions to the ALJ to:

clarify the period at issue addressing the alleged onset date, further consider the opinion evidence of record, including Dr. [Hugh] Fairley’s opinion, reassess Plaintiff’s maximum residual functional capacity [(RFC)] throughout the period at issue with reference to specific evidence of record in support of the assessed limitations, obtain supplemental vocational expert testimony, and issue a new decision.11

After the remand, the Appeals Council vacated ALJ Levin’s

decision and remanded the case for a new hearing, which ALJ

Levin conducted in January 2016.

8 Id. at 1795.

9 Id. at 1922.

10 Id. at 1905.

11 Id.

4 B. The decision under review

ALJ Levin invoked the requisite five-step sequential

evaluation process in assessing Hastings’s request for benefits.

See

, 416.920. After determining that

Hastings had not engaged in substantial gainful activity for a

continuous 12-month period after the alleged onset of her

disability, the ALJ analyzed the severity of her impairments.

At this second step, the ALJ concluded that Hastings had the

following severe impairments: obesity, degenerative lumbar disc

disease, diabetes mellitus, and hearing loss.12 In addition, and

as particularly relevant to this appeal, the ALJ reversed his

previous finding (made after Hastings’s third hearing) that

Hastings’s bilateral carpal tunnel syndrome qualified as a

severe impairment.13 The ALJ made this finding after

“reconsideration of the evidence in its totality,” rather than

on any new evidence.14 In his earlier decision, after finding

that Hastings’s carpal tunnel syndrome was a severe impairment,

ALJ Levin incorporated that finding into his residual functional

capacity (“RFC”) determination, which limited Hastings to only

occasional bilateral overhead reaching and only frequent

12 Id. at 1775.

13 Id. at 1776.

14 Id.

5 handling and grasping with her left hand.15 After rescinding the

carpal tunnel syndrome finding, ALJ Levin included no

manipulative limitations in Hastings’s RFC.16

At the third step, the ALJ found that Hastings’s remaining

severe impairments did not meet or “medically equal” the

severity of one of the impairments listed in the Social Security

regulations.17 See

(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926.

After reviewing the record medical opinions, the ALJ

concluded that Hastings retained the RFC to perform sedentary

work, see

(a), except that:

She must avoid all ladders ropes and scaffolds. She must avoid all kneeling, crouching, and crawling. She could occasionally stoop and balance, with occasional being defined as up to one-third of the workday. She could occasionally push and pull with the upper extremities as needed to use hand controls. She must avoid even moderate exposure to loud background sounds.18

Based on a vocational expert’s testimony, the ALJ found

that, even limited in this manner, Hastings could perform her

past relevant work as a telemarketer, as her RFC did not prevent

15 Id. at 18, 23.

16 Id. at 1775, 1782.

17 Id. at 1781.

18 Id. at 1782.

6 her from performing the requirements of that job.19 The ALJ

concluded his analysis and found that Hastings was not disabled

within the meaning of the Social Security Act.20

III. Analysis

Hastings challenges three aspects of the ALJ’s decision.

First she argues that the ALJ improperly rescinded his earlier

finding that her bilateral carpal tunnel syndrome was a severe

impairment.21 Next, she argues that the ALJ erred by finding

that her cellulitis was not a severe impairment.22 Hastings’s

third claim is that the ALJ erred by finding that she could

return to her job as a telemarketer.23 That job, she asserts,

includes a “moderate” noise intensity, while the RFC provides

that Hastings “must avoid even moderate exposure to loud

background sounds.”24 The court agrees that remand is warranted

based on the first claim of error, and that the ALJ must treat

Hastings’s carpal tunnel syndrome as a severe impairment.

19 Id. at 1790.

20 Id. at 1791.

21 Pltff. Mot. (doc. no. 9) at 5.

22 Id. at 9.

23 Id. at 13.

24 Admin. R. at 1782.

7 A. Scope of remand

Pursuant to Social Security regulations, “[w]hen a Federal

court remands a case to the Commissioner for further

consideration,” the Commissioner may in turn remand it to the

administrative law judge, and “[a]ny issues relating to [the]

claim may be considered by the administrative law judge whether

or not they were raised in the administrative proceedings

leading to the final decision in [the] case.”

. But it is also “well established that ‘district

courts have the power to limit the scope of remand’ in this kind

of case and that the SSA – notwithstanding its regulations –

must abide by the court’s limiting instructions.” Warner v.

Astrue,

(quoting Thompson v. Astrue,

(S.D.N.Y. 2008)). “Deviation from the court’s

remand order in the subsequent administrative proceedings is

itself legal error, subject to reversal on further judicial

review.” Sullivan v. Hudson,

(1989).

The Assistant Commissioner argues that the ALJ, in

“revisiting” Hastings’s carpal tunnel syndrome, was permissibly

“acting in ways that go beyond, but are not inconsistent with,

the district court's opinion.” Hollins v. Massanari, 49 F.App’x

533, 536 (6th Cir. 2002).25 But here, ALJ Levin’s reconsideration

25 Def. Mot. (doc. no. 12) at 6.

8 was inconsistent with the text of the remand order. That order,

which adopted the language of the Acting Commissioner’s motion,

called upon the ALJ to, inter alia, “reassess the plaintiff’s

maximum [RFC] . . . with reference to specific evidence of

record in support of the assessed limitations . . . .” (emphasis

added).26 The Acting Commissioner’s use of the past-tense term

“assessed limitations” in Hastings I persuades the court that

the remand was limited to consideration of those limitations

already “assessed,” which includes Hastings’s carpal tunnel

syndrome. It did not give the ALJ license to rescind any such

assessment.

The court is further persuaded by decisions from the

District of Maine and elsewhere holding that “reconsideration of

the finding at Step 2 that a claimant’s impairment is severe is

foreclosed when the remand order does not specifically direct

the [ALJ] to undertake that task.” Staples v. Colvin, No. 2:15-

cv-392-DBH,

, at *2 (D. Me. Aug. 3, 2016), report

and recommendation, adopted by

(D. Me. Oct. 6,

2016) (citing Day v. Astrue, No. 1:12-cv-141-DBH,

, at *5 (D. Me. Dec. 30, 2012), report and recommendation

adopted by

(D. Me. Jan. 18, 2013)); see also

Drummond v. Comm’r Soc. Sec.,

(6th Cir. 1997)

26 Hastings I, doc. no. 10.

9 (holding that ALJ may not change finding of severe impairment to

not severe on remand absent evidence of improvement in

plaintiff’s condition); Carrillo v. Heckler,

(S.D.N.Y. 1984) (“[T]he remand order specifically stated

the purpose for remand. That purpose did not include

reconsideration of the severity of plaintiff's impairments.

Reconsideration by the ALJ of that issue, therefore, was

inconsistent with and beyond the scope of [the remand] order.”).

Given the vocational expert’s testimony regarding the

significance of manipulative limitations,27 the ALJ’s error was

not harmless. See Evangelista v. Sec’y Health & Human Servs.,

(1st Cir. 1987) (“We have held that remand is

indicated only if, were the proposed new evidence to be

considered, the Secretary's decision “might reasonably have been

different.”) (internal quotation omitted). Accordingly, the

ALJ’s deviation from the previous remand order is “legal error,

subject to reversal.” Sullivan,

.

In an effort to assist the parties in bringing this long-

running claim to a conclusion, the court briefly addresses

plaintiff’s other assertions of error.

27Admin. R. at 2421 (vocational expert testifying that past work could not be performed with handling and fingering limitations).

10 B. Cellulitis

Hastings argues that the ALJ should have found that her

cellulitis was a severe impairment due to multiple

hospitalizations, totaling 80 days, over the course of 19

months.28 But as the ALJ correctly observed, a condition must

cause more than mild limitations in work activity for 12

consecutive months.29 See 20 C.F.R. 404.1509. The ALJ cited

medical records showing that Hastings’s condition resolved

quickly with treatment after each hospitalization.30 This is

sufficient to support his conclusion, as “claimant's

hospitalization and periods of recuperation represent distinct

and separate periods of disability which cannot satisfy the

statutory requirement of continuous disability.” Maher v. Secy’

of Health & Human Servs.,

(6th Cir. 1989).

C. Hearing limitation

As noted, the ALJ ultimately found that Hastings could

return to her job as a telemarketer. According to the

Department of Labor, this job has a limitation to a noise

intensity of “moderate” on a scale that also includes “loud” and

28 Pltff. Mot. (doc. no. 9) at 9.

29 Admin R. at 1777.

30 Id. at 1777-78.

11 “very loud.”31 Hastings argues that this is inconsistent with

the ALJ’s RFC assessment, pursuant to which she was to avoid

“even moderate exposure to loud background sounds.” The Acting

Commissioner asserts that the ALJ’s use of “moderate” was

intended to modify “the frequency at which Plaintiff could be

exposed to loud background sounds,” as opposed to the job

description, which used the word “to describe the decibel level

that one would be exposed to while working . . . .”32 Thus,

according to the Commissioner, Hastings would not be exposed to

“loud” sounds. The Acting Commissioner has the better of the

argument. In questioning the vocational expert, the ALJ

specifically asked about “even moderate exposure to loud

background sound.”33 The use of both “moderate” and “loud” in

the question persuades the court that the former term is a

temporal limitation. And Hastings cites no evidence suggesting

that she would be exposed to noise beyond the limits of her RFC.

31U.S. Department of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, 1993, at 355, Appendix D-2.

32 Def. Mot. (doc. no. 12-1) at 16-17.

33 Admin. R. at 2420.

12 IV. Conclusion

The court’s remand order in Hastings I did not permit the

ALJ to reject his prior finding that Hastings’s carpal tunnel

syndrome was a severe impairment. The plaintiff’s motion to

reverse34 is therefore GRANTED. The Assistant Commissioner’s

motion to affirm35 is denied. The case is remanded. Upon

remand, the ALJ shall reinstate the finding of severity, and

include the resulting limitations in a revised RFC. The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: September 12, 2018

cc: Alexandra M. Jackson, Esq. Karen B. Fitzmaurice, Esq. Robert J. Rabuck, AUSA

34 Doc. no. 9.

35 Doc. no. 12.

13