Briand v. US Social Security Administration, Acting Commissioner
MEMORANDUM & ORDER granting 10 Motion to Reverse Decision of Commissioner; denying 12 Motion to Affirm Decision of Commissioner. 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 by Judge Paul J. Barbadoro.(js)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James T. Briand
Civil No. 16-cv-313-PB
Opinion No. 2017 DNH 159
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.
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.
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.
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
See 42 U.S.C. § 405(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
Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st
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., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)
(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (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.
are not conclusive, however, if the ALJ derived his findings by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.”
Cir. 1999) (per curiam).
Nguyen v. Chater, 172 F.3d 31, 35 (1st
The ALJ is responsible for determining
issues of credibility and for drawing inferences from evidence
in the record.
Irlanda Ortiz, 955 F.2d at 769.
It is the role
of the ALJ, not the court, to resolve conflicts in the evidence.
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.
In June 2013, Briand filed his first application for
On June 16, 2014, an ALJ denied his claim.
Briand then challenged the denial by filing an action in
this court over which Judge McCafferty presided.
Briand v. Colvin, 2015 DNH 131.
While that action was pending,
Briand filed new applications for benefits, alleging disability
since the day after the ALJ’s decision.
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.
In a decision issued the following month, Judge McCafferty
remanded Briand’s challenge to the denial of his 2013
Briand, 2015 DNH 131 at 15.
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
Briand’s residual functional capacity (“RFC”) assessment.
The Appeals Council, in turn, remanded the case for
reconsideration by the ALJ.
The Appeals Council
also instructed the ALJ to evaluate whether to reopen the single
decision-maker’s approval of Briand’s 2014 applications.
On remand, the ALJ held a hearing at which a vocational
expert, an orthopedic medical expert, and Briand testified.
On March 29, 2016, the ALJ issued a new decision
concluding that Briand was not disabled.
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.
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
In response, the Acting Commissioner acknowledges
the limited scope of the expert’s opinion, but argues that the
ALJ permissibly omitted the sit/stand limitation because
Briand’s non-orthopedic impairments were not severe.
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
Residual Functional Capacity
A claimant’s RFC is “the most [the claimant] can still do
despite [his] limitations.”
20 C.F.R. § 416.945(a)(1).
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.F.R. §§ 404.1523(c) (2016) (since amended), 42 U.S.C. §
If the ALJ finds “a medically severe combination
of impairments,” he must “consider the combined impact of the
impairments” in formulating the RFC.
See 42 U.S.C. §
The RFC is “based on all the relevant evidence in
20 C.F.R. § 416.945(a)(1).
But the ALJ, as a
layperson, may not reject an uncontroverted medical opinion.
Nguyen, 172 F.3d at 35.
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
the RFC assigned to Briand is free from legal error and
supported by substantial evidence.
See Nguyen, 172 F.3d at 35.
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.
found that Briand had three medically determinable impairments
that were severe: chronic venous insufficiency, obesity, and
Tr. 48–49, 53; Doc. No. 14 at 14.
Fairley also identified non-severe impairments of osteoarthritis
and sleep apnea.
Dr. Fairley concluded that Briand’s
impairments allowed him to perform light work, subject to
Tr. 19, 50–52.
Among those limitations,
Dr. Fairley found that Briand must “periodically alternate
[between] sitting and standing to relieve pain and discomfort.”
Dr. Fairley further specified: “Change stand to
walk/sit 1/2 hrly for a few minutes.”
In addition, Dr.
Fairley found that Briand must avoid exposure to hazards and
avoid concentrated exposure to vibration and extreme
The ALJ’s first decision incorporated
these environmental limitations into the RFC, but omitted the
because of this omission.
Judge McCafferty remanded
Briand, 2015 DNH 131 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
which were identified” by Judge McCafferty.
Doc. No. 10–1 at 7.
Indeed, the ALJ again omitted the sit/stand limitation.
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.
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.”
The Acting Commissioner advances two arguments to support
her contention that the ALJ permissibly omitted the sit/stand
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.
An ALJ may not
“substitute his own views for [an] uncontroverted medical
See Nguyen, 172 F.3d at 35.
Dr. Kwock’s opinion was
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.
He did not consider whether Briand had non-
orthopedic impairments, let alone assess their functional
Rather, Dr. Kwock explicitly stated
that his opinion addressed only Briand’s osteoarthritis and
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.
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.”
Accordingly, Dr. Fairley’s
opinion on these subjects remained uncontroverted.
ALJ cannot “substitute his own views for uncontroverted medical
opinion,” Nguyen, 172 F.3d at 35, the Acting Commissioner’s
first argument fails.
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.
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.”
misses the mark.
Doc. No. 12-1 at 13.
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
See 40 C.F.R. § 404.1523 (2016) (since
amended); Social Security Ruling 96–8p, 1996 WL 374184 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.”
As discussed, Dr. Fairley
reached an uncontroverted conclusion to the contrary.
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, 172 F.3d at 35.
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.”
v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998) (quoting
Rosado v. Sec’y of Health and Human Servs., 807 F.2d 292, 292
(1st Cir. 1986)).
Thus, the Acting Commissioner’s second
Accordingly, I conclude that the ALJ erred in
formulating Briand’s RFC.3
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
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,
274 F.3d 606, 608 (1st Cir. 2001); see 20 C.F.R. § 404.1560(c).
In concluding that jobs were available to Briand, the ALJ relied
on the vocational expert’s testimony at the remand hearing.
vocational expert testified that three light work jobs were
available to someone with the RFC assigned by the ALJ.
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.
Briand, 2015 DNH 131, 10–11, 13.
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, 2015 DNH 131, 3 n.1 (declining to address
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
The vocational expert replied that
although the previously identified light-work jobs would not be
available, three sedentary jobs would be.
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
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
So did Dr. Kwock.
See Tr. 379, 381.
And so did
Dr. Fairley, whose additional limitations remained
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
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
available to Briand.
Accordingly, I decline to find the ALJ’s
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.
United States District Judge
August 28, 2017
Janine Gawryl, Esq.
Terry L. Ollila, Esq.
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