UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Sprano

v. Civil No. 18-cv-355-JD Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Richard Sprano seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of Social

Security that denied his application for disability insurance

benefits and supplemental security income. In support, Sprano

contends that the Administrative Law Judge (“ALJ”) erred in

weighing the medical opinions, which caused an erroneous

conclusion that he was not disabled. The Acting Commissioner

moves to affirm. Sprano filed a reply, and the Acting

Commissioner filed a surreply to address the arguments raised

there. See LR 9.1(d).

Standard of Review

In reviewing the final decision of the Acting 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,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings if they are supported by substantial evidence.

§ 405(g). Substantial evidence is “more than a scintilla of

evidence” but less than a preponderance. Purdy v. Berryhill,

(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.,

(1st Cir. 1991) (internal

quotation marks omitted); accord Purdy,

.

Background1

On March 31, 2016, Richard Sprano filed applications for

social security benefits under Title II and Title XVI, alleging

an onset of disability on February 3, 2010.2 He was forty-two

years old when he filed his applications. Sprano was treated at

Charlestown Family Medicine by PA-C Uptegrove for back pain and

diabetes from January of 2016 to January of 2017.

1 The parties did not provide a joint statement of material facts. Sprano provided no statement of facts but included some procedural history in his memorandum. The Acting Commissioner provided only a very abbreviated factual statement.

2 The onset date was discussed at the administrative hearing and amended to March 31, 2016.

2 Dr. Thomas H. Gassert, M.D., saw Sprano in consultation on

referral from PA-C Uptegrove on August 10, 2016. Dr. Gassert

noted that Sprano seemed uncomfortable due to back pain. He

found that Sprano could hold twenty pounds at shoulder height,

his gait and stance were normal, all other leg and arm joints

were normal, no signs of radiculopathy, and he could heel and

toe walk with modest back pain. Dr. Gassert referred Sprano for

a residual functional capacity assessment.

In October of 2016, Karen Huyck, M.D., who practices

occupational medicine, did residual functional capacity testing

of Sprano as a consultative physician. Dr. Huyck had a follow

up meeting with Sprano on January 30, 2017, when she provided

the results of her earlier examination.

Dr. Huyck found that Sprano had impairment in his tolerance

for standing, pace, walking, and lifting. She also noted that

he had completed school only through ninth grade and had failed

the pretest for GED courses. She also found that he “gave

nearly full levels of physical effort” during her testing.

Dr. Huyck found that Sprano could sit and stand for thirty

minutes each. His walking test showed that he maintained a

consistent speed for six minutes and achieved 55% of the

distance expected for his age and cardiovascular condition. He

was able to lift up to forty-three pounds occasionally up to

shoulder height and could carry up to forty-three pounds. He

3 scored in the fifth percentile in a manipulation test. Dr.

Huyck further found that “although he may have a sedentary work

capacity, he does not have the sitting tolerance or the literacy

skills to be able to do a sedentary job.” Based on Sprano’s

reports to her about falling, she also found he was “at

significant fall risk.”

Dr. Stuart Glassman, M.D., who practices with Granite State

Physiatry PLLC, did a consultative examination of Sprano on May

5, 2017. Dr. Glassman reviewed Sprano’s medical records and Dr.

Huyck’s functional capacity assessment. Based on the records

and his examination, Dr. Glassman completed a “Medical Source

Statement of Ability to Do Work-related Activities (Physical)”

for New Hampshire Disability Determination Services.

Dr. Glassman found that Sprano could occasionally lift and

carry up to fifty pounds, could frequently lift and carry up to

twenty pounds, and could continuously lift and carry up to ten

pounds. He wrote that, because of his spinal stenosis and back

pain, Sprano could sit for fifteen minutes at a time for a total

of three hours, stand for twenty minutes at a time for a total

of four hours, and walk for five minutes at a time for a total

of one hour. He found that Sprano was limited to occasional

reaching overhead, frequent reaching in all other directions,

and had no limitations in handling, fingering, feeling, and

pushing and pulling. His use of foot controls was limited to

4 frequently. Other postural activities were limited to

frequently. Dr. Glassman found that Sprano could do all of the

listed activities, such as shop, travel, and walk on uneven

surfaces.

A hearing was held before an ALJ on June 6, 2017. Sprano

was represented by counsel, appeared, and testified at the

hearing. A vocational expert also appeared and testified.

Sprano explained that he stopped working because of back

pain. The ALJ reviewed Dr. Glassman’s findings with Sprano, and

she interpreted Dr. Glassman’s limitations as to the time he

could sit and stand as a need for an option to sit or stand.

The ALJ also reviewed Dr. Huyck’s findings. Sprano said that

his spine doctor told him not to work, but his counsel denied

having a medical record to support Sprano’s assertion. Sprano’s

attorney and the ALJ asked him about his medical treatment for

his back, his pain, and his daily activities.

The ALJ posed a hypothetical question to the vocational

expert based on Dr. Glassman’s residual functional capacity

assessment. She described a person who could work at the medium

exertional capacity with an option to sit or stand while

working, limited standing and walking to five hours during the

day, doing each for about half of the time, and limited sitting

to about three hours. Reaching and postural activities were

limited to occasionally.

5 In response, the vocational expert said that such a person

would not be able to do Sprano’s past work. She explained that

with the sit/stand option, the person would be limited to work

at the light exertional level. With those restrictions, the

person could work as a storage facility rental clerk, or as an

inspector or hand packager. The vocational expert said that

there were no sedentary jobs with a sit/stand option.

Sprano’s attorney questioned the vocational expert about

the limitations she considered. Specifically, the attorney

asked whether someone “who is limited to three hours . . . to

half standing in a workshift” could do the jobs the vocational

expert identified. Doc. 9-2 at 64. The vocational expert

confirmed that the identified jobs allowed a sit/stand option.

The ALJ issued her decision on August 2, 2017, finding that

Sprano was not disabled. In support, the ALJ found that Sprano

had severe impairments due to lumbar spinal stenosis,

degenerative disc disease, residual effects following shoulder

surgery, and obesity but that those impairments did not meet or

equal any listed impairment.

The ALJ gave great weight to the functional assessment done

by Dr. Glassman and little weight to the assessment done by Dr.

Huyck. The ALJ explained that Dr. Huyck’s opinion was not

consistent with the rest of the medical record because she

limited Sprano’s ability to walk based on his own report of poor

6 balance and falls, which were not documented in his treatment

records. The ALJ also faulted Dr. Huyck’s assessment that

Sprano’s literacy skills would preclude him from working when

that was outside of her expertise.

The ALJ credited Dr. Glassman’s assessment because his

limitations were consistent with the rest of Sprano’s treatment

record and Sprano’s own report of his abilities. Relying on Dr.

Glassman’s assessment, the ALJ found that Sprano had the

residual functional capacity to perform medium work with the

limitation that he could spend about half a work day (four

hours) standing, three hours sitting, and one hour walking. She

limited Sprano to occasionally doing postural activities and

frequently reaching.

Based on that assessment and the vocational expert’s

opinion, the ALJ found that Sprano was not able to return to his

past work. The ALJ found that Sprano could do the jobs that the

vocational expert identified because those jobs could be done

either standing or sitting, would not require more than half of

the time standing, and would not require more than one hour of

walking during the workday. As a result, the ALJ found that

Sprano was not disabled. The Appeals Council denied Sprano’s

request for review.

7 Discussion

Sprano contends that the decision must be reversed because

the ALJ improperly weighed the residual functional assessments

provided by Dr. Huyck and Dr. Glassman. In his reply, Sprano

contends that the ALJ assessed a different functional capacity

than Dr. Glassman provided, and challenges Dr. Glassman’s

opinion and the ALJ’s decision because neither restricted

Sprano’s capacity to do manipulative activities. The Acting

Commissioner moves to affirm, contending that the ALJ properly

weighed the conflicting opinions and properly assessed Sprano’s

functional capacity.

A. Medical Opinions

“Medical opinions are statements from acceptable medical

sources that reflect judgments about the nature and severity of

[a claimant’s] impairment(s), including [his] symptoms,

diagnosis and prognosis, what [he] can still do despite

impairment(s), and [his] physical or mental restrictions.”

(a)(1).3 An ALJ is required to consider medical

opinions along with all other relevant evidence in a claimant’s

record.

(b). Medical opinions are

3 Because the regulations implementing the standard for disability under Title II (§ 404.1520 - § 404. 1530) and under Title XVI (§ 416.920 - § 416.930) are the same, the court will cite the to Title II regulations. See Sullivan v. Zebley,

(1990).

8 evaluated based upon the nature of the medical source’s

relationship with the claimant, the extent to which the source

provides evidence to support the opinion, the extent the opinion

is consistent with other evidence in the record, the

specialization of the medical source, and other factors

including the understanding the source has of the social

security system. § 404.1527(c).

In this case, the two opinions at issue are both from

consultative medical sources, Dr. Huyck and Dr. Glassman. The

ALJ gave great weight to Dr. Glassman’s opinion and little

weight to Dr. Huyck’s opinion. Sprano contends that the ALJ

erred in weighting the opinions.

1. Examination

Sprano argues that Dr. Huyck, a specialist in occupational

medicine, did a more comprehensive examination than Dr.

Glassman. For that reason, Sprano contends, Dr. Huyck’s opinion

deserves greater weight. Dr. Glassman, a specialist in

physiatry, also examined Sprano and provided a functional

capacity assessment. Sprano has not shown that Dr. Huyck’s

opinion was entitled to more weight based on any differences in

their specialties or their examinations.

9 2. Evaluation of the Opinions

The ALJ gave great weight to Dr. Glassman’s opinion because

that opinion was consistent with Sprano’s presentation during

the examination, during his regular office visits with PA-C

Uptegrove, and with an evaluation done by Dr. Gassert. The ALJ

gave little weight to Dr. Huyck’s opinion because that opinion

was not consistent with the record evidence. The ALJ

particularly noted Dr. Huyck’s findings about Sprano’s poor

balance and a history of falls, which the ALJ concluded were not

supported by Dr. Huyck’s own examination or the record.

Sprano contends that the ALJ was wrong that his poor

balance and difficulty walking was not documented in his medical

records. In support, Sprano cites a physical therapy treatment

note from February 24, 2016, where he reported his leg had given

out the previous day. The note also listed as “Problems” that

Sprano had “Impaired gait” and difficulty with stairs, standing,

sitting, and dressing. Sprano also notes other instances where

he reported to providers that he had had concern about losing

his balance and falling.

The Acting Commissioner acknowledges that the ALJ missed

two instances in the record where Sprano reported falling – one

to the physical therapist and another to the physician’s

assistant. Other than Sprano’s own reports, however, the record

includes no observed problems with balance or falling. Dr.

10 Huyck did not note any balance problems while Sprano completed

the tests in her office, which included walking, climbing stairs

without a rail, and standing for thirty minutes. Dr. Glassman

also did not observe balance problems.

Despite the lack of medical evidence of balance problems or

falling, Dr. Huyck concluded that Sprano would be unable to walk

effectively because of poor balance and a history of falls. The

record, therefore, supports the ALJ’s decision to give little

weight to Dr. Huyck’s opinion.

Sprano contends that Dr. Glassman’s opinion was not

supported by the medical record because his history showed that

he was functionally limited by back pain to a greater extent

than Dr. Glassman found.4 The Acting Commissioner notes Dr.

Glassman’s examination results that support his opinion and also

notes that Dr. Glassman indicated that Sprano might have been

giving exaggerated reactions during the examination. The Acting

Commissioner contends that Dr. Glassman’s opinion is consistent

with the objective findings from Sprano’s office visits with

PA-C Uptegrove which recorded normal results.

4 To the extent Sprano argues, in his reply, that Dr. Glassman’s opinion is deficient because he did not address the test results Dr. Huyck recorded on Sprano’s manipulation test, Sprano has not shown that a consultative medical source is required to address every test administered by another medical source. Further, as is explained below, Dr. Huyck did not add manipulative limitations based on that test result.

11 As is often the case in social security cases, the record

here might support a different outcome. It is the ALJ’s job,

however, to resolve conflicts in the evidence. Applebee v.

Berryhill, --- Fed. Appx. ---,

, at *1 (1st Cir.

Nov. 30, 2018). The evidence is sufficient to support an ALJ’s

decision to rely on Dr. Glassman’s opinion, 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,

((internal quotation marks omitted); accord

Purdy,

. Sprano has not provided grounds to

reverse based on the ALJ’s reliance on Dr. Glassman’s opinion.

B. Residual Functional Capacity

In his reply, Sprano argues for the first time that the ALJ

did not actually rely on Dr. Glassman’s opinion to assess

Sprano’s residual functional capacity and that Dr. Glassman and

the ALJ failed to address the manipulative limitations that Dr.

Huyck found.5 Because of those perceived errors in the residual

functional capacity assessment, Sprano contends that the

5 Ordinarily, issues or arguments that are first raised in a reply will not be considered. See LR 7.1(e)(1) (providing that reply is restricted “to rebuttal of factual and legal arguments raised in the objection or opposition memorandum”); Fraser Eng’g Co., Inc. v. IPS-Integrated Project Servs.,

, n.7 (D.N.H. Mar. 27, 2018). Here, however, the Acting Commissioner responded to Sprano’s new arguments in her surreply.

12 vocational expert’s opinion about jobs did not provide evidence

to support the finding that he was not disabled. The Acting

Commissioner contends that no error occurred.

The residual functional capacity assessment is a finding of

the most a claimant can do in a work setting despite his

limitations caused by impairments.

(a)(1).

An ALJ’s assessment is reviewed to determine whether it is based

on proper legal standards and is supported by substantial

evidence. Nguyen,

. An ALJ generally cannot

interpret medical data in a claimant’s record in functional

terms. Manso-Pizarro v. Sec’y of Health & Human Servs.,

(1st Cir. 1996). For that reason, an expert’s functional

capacity assessment, generally in the form of a medical opinion,

is necessary to evaluate a claimant’s work capacities in light

of his impairments. Id.; see also Swain v. Berryhill,

, at *5 (D.N.H. Oct. 29, 2018).

1. Hypothetical Question, Residual Functional Capacity

Sprano contends that the hypothetical question to the

vocational expert did not convey accurately Sprano’s residual

functional capacity as found by Dr. Glassman. Specifically,

Sprano sees a discrepancy between Dr. Glassman’s findings about

his ability to sit, stand, and walk and those limitations in the

13 hypothetical.6 The Acting Commissioner contends that there is no

discrepancy.

Dr. Glassman found that Sprano could sit for a period of

fifteen minutes at a time for a total of three hours, could

stand for a period of twenty minutes for a total of four hours,

and could walk for a period of five minutes for a total of one

hour. The ALJ’s hypothetical question to the vocational expert

is confusing. Nevertheless, when the question is taken in the

context of the discussions between the ALJ and vocational expert

and Sprano’s attorney and the vocational expert, the record

shows that the vocational expert understood that she was asked

whether jobs existed for someone who could sit for up to three

hours, stand for up to four hours, and walk for up to one hour.

The other limits on the ability to sit and stand identified by

Dr. Glassman were addressed with the sit/stand option, which

would allow the employee to change position at will. Therefore,

the record does not support Sprano’s argument that the

vocational expert’s opinion was based on an erroneous

hypothetical question.

6 Sprano also notes that Dr. Glassman found different weight to be the maximum amount he could lift frequently – twenty pounds in one place and twenty-five pounds in another. Sprano does not explain, however, what difference that made in his case.

14 2. Manipulative Limitations

Sprano also contends that the ALJ’s residual functional

capacity assessment was erroneous because it did not include

manipulative limitations that, he contends, Dr. Huyck found. He

argues that manipulative limitations were required based on the

results of a test administered by Dr. Huyck. He further argues

that because neither Dr. Glassman nor the ALJ explained why

manipulative limitations were excluded the residual functional

capacity assessment is not properly supported.

As the Acting Commissioner points out, Dr. Huyck found in

her residual functional capacity assessment that Sprano “had

impairment of standing tolerance, pace, ambulation (55 percent

of distance expected for age), and lifting (spinal shift to the

right with lifting at 40 pounds).” Admin. Rec. at 317-18. She

did not find that Sprano had any manipulative limitations. Dr.

Huyck also found that Sprano would have the capacity for work at

a sedentary level except for the limitation in his ability to

sit for a long time and literacy deficits, but she did not find

any limitation in his ability to do manipulative activities.

See SSR 85-15,

, at *7 (“handling [seizing,

holding, grasping, turning or otherwise working primarily with

the whole hand or hands] are activities required in almost all

jobs”). Therefore, the raw test results that Sprano cites do

not provide any basis, much less a requirement, for the ALJ to

15 include a manipulative limitation in the residual functional

capacity assessment.

C. Result

The ALJ’s sloppiness in this case made the review more

difficult than should have been necessary. Nevertheless,

because the vocational expert identified jobs that a person with

Sprano’s limitations could perform, substantial evidence

supports the finding that Sprano was not disabled.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

(document no. 10) is denied.

The Acting Commissioner’s motion to affirm (document no.

12) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

December 19, 2018

cc: Karen B. Fitzmaurice, Esq. Alexandra M. Jackson, Esq. Candace H. Lawrence, Esq.

16