Maynard v. US Social Security Administration, Acting Commissioner

Filing 12

///ORDER granting 8 Motion to Reverse Decision of Commissioner; denying 10 Motion to Affirm Decision of Commissioner. Case is remanded. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Amanda Maynard
v.

Civil No. 16-cv-419-LM
Opinion No. 2017 DNH 188

Nancy A. Berryhill, Acting
Commissioner of Social Security1

O R D E R
Amanda Maynard seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
social security disability benefits.

Because the Administrative

Law Judge (“ALJ”) erred in her assessment of Maynard’s residual
functional capacity by improperly evaluating and weighing the
medical evidence, the court remands the case to the Social
Security Administration.
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

Nancy A. Berryhill became Acting Commissioner of the Social
Security Administration on January 23, 2017, replacing Carolyn
W. Colvin. See Fed. R. Civ. P. 25(d).
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facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.
scintilla.

§ 405(g).

“Substantial evidence is more than a

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Background2
On July 26, 2013, Amanda Maynard applied for social
security disability benefits, claiming a disability that began
on June 19, 2013.

Maynard alleged that she was disabled because

of chronic obstructive pulmonary disease (“COPD”), effects of a
brain aneurysm, severe left main coronary artery disease,
hyponatremia, and degenerative disc disease.
years old at the time of her application.

Maynard was 50

She had previously

worked as a medical device assembler, production supervisor, and
a medical assistant.

The background information is summarized from the parties’
joint statement of material facts. See LR 9.1(c).
2

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I.

Medical Evidence
The medical evidence in the administrative record begins on

June 5, 2013, when Maynard was diagnosed with “advanced cervical
degenerative disc disease at multiple levels.”

That same day,

Dr. Kishori Somyreddy of Cocheco Neurology noted at her physical
exam that Maynard had “decreased cervical range of motion,
restriction of neck flexion and extension,” and instructed
Maynard to wear a soft neck brace and to avoid heavy exertion or
lifting.

Maynard subsequently had an MRI exam, which showed,

among other things, straightening of the cervical spine and
multilevel spinal stenosis.

Dr. Somyreddy recommended epidural

steroid injections, encouraged Maynard to take ibuprofen, and
prescribed tramadol.

Maynard had ongoing treatment for her back

and neck pain throughout 2013.
On June 19, 2013, Maynard was admitted to Frisbie Memorial
Hospital after suffering a subarachnoid hemorrhage.

A CT scan

also showed a left posterior communicating artery aneurysm.
Maynard was transferred to Dartmouth-Hitchcock Medical Center
later that same day, and was hospitalized there from June 19
until July 13, 2013, undergoing several operations and
procedures during her stay.

When she was discharged on July 17,

Maynard was restricted to lifting three-to-five pounds, advised
to restrict strenuous activity, and directed not to drive until

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cleared by neurosurgery.
July 2014.

She received clearance to drive in

Maynard’s prescriptions included aspirin, Keppra (an

anti-convulsant), and a narcotic pain medication.
On August 27, 2013, Maynard had a follow-up appointment at
Dartmouth-Hitchcock with Dr. David Roberts and Dr. David Soucy,
PA-C.

Maynard reported that she was doing well and that she

noticed increased left eye opening about a week and a half prior
to the appointment.

Maynard had left eyelid ptosis, her left

pupil was approximately four millimeters and nonreactive, and
she had a third ocular nerve palsy.

PA Soucy told Maynard to

remain on Keppra for at least a year, and continue to take
aspirin.
On October 14, 2013, Dr. Hugh Fairley, a state agency
consultative physician, reviewed Maynard’s medical records of
physical impairments.

Dr. Fairley opined that Maynard was

limited to lifting and carrying up to 10 pounds occasionally and
frequently and that she was limited to standing and/or walking
for up to four hours and sitting up to six hours in an eighthour workday.

He further opined that Maynard was limited to

occasionally climbing ramps, stairs, ladders, ropes, or
scaffolds, as well as occasionally balancing, stooping kneeling,
crouching and crawling.

Dr. Fairley also opined that Maynard

had no manipulative or visual limitations, but that her speaking

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was limited and she needed to avoid work requiring constant and
verbal communications.
On October 29, 2013, Maynard saw Dr. Clifford Eskey.

Dr.

Eskey concluded that Maynard suffered from easy fatiguability,
sensory overload, and word finding problems, which were slowly
improving.

Dr. Eskey assessed that Maynard continued to recover

from the subarachnoid hemorrhage, and noted that Maynard would
be evaluated by vocational therapy about returning to work, at
least on a part-time basis initially.
Maynard continued to feel no significant improvement in her
cervical neck pain through early 2014.

She received two

cervical epidural steroid injections, on November 6, 2013 and
January 7, 2014, to alleviate the pain.
II.

Function Report
On September 3, 2013, Maynard submitted a Function Report

to the Social Security Administration.

Maynard wrote in the

Function Report that she was limited in her ability to work
because she was currently “healing from an aneurysm in [her]
brain with a blood clot in it” and that she was not allowed to
drive to work.
Maynard also wrote that she did not do any heavy lifting,
and that she was limited to lifting three-to-five pounds.
wrote that she had difficulty with her memory, and trouble
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She

completing tasks because of a short attention span.

She further

reported that she was anxious and did not handle changes in her
routine well.

In addition, she wrote that she had limited

vision, but noted that she wore glasses.
III. Hearing Before the ALJ
A hearing before an ALJ was held on Maynard’s application
in June 2015.

Maynard was represented by an attorney and

testified at the hearing.
Maynard testified about her symptoms and daily activities.
She stated that she had made a few attempts to return to work in
August, September, and December 2014, each of which lasted
between a few days and three weeks.

She testified that, in May

2015, she had begun a temporary position at Meals on Wheels,
working 11 to 18 hours per week as a driver/backup position and
learning the site work, including preparing meals.
Maynard also testified that she fatigued easily, was
lightheaded, and had double vision at all times, especially when
altering eye movements.

She also stated that she had nerve pain

in her left eye, which was sometimes chronic.
She further testified that tilting her head down and
sitting straight up “ma[de]things worse” because of her cervical
disc disease, but that she did not think she would have trouble
standing or walking for periods of time and that she was able to
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lift and carry up to 15 pounds.

Maynard stated that when she

had tried to return to work in a packaging position, her neck
was aggravated by looking down and trying to pick up small
pieces with tweezers was difficult because of her depth
perception issues.
Maynard stated that she experienced nerve pain in her left
eye once or twice a week and that she would lie down, close her
eyes and sit quietly, or take ibuprofen to relieve that pain.
Maynard also stated that she needed to rest her eyes at times,
usually when she was reading, using the computer, or following a
recipe, but that she did not need to do so during her current
job at Meals on Wheels.
A vocational expert testified at the hearing.

The ALJ

asked the vocational expert to assume that the claimant was
capable of performing work at the light level, but with certain
limitations.

The expert testified that the claimant could

perform the jobs of linen sorter, small parts assembler, and
packager.
IV.

ALJ’s Decision
The ALJ issued an unfavorable decision on July 14, 2015.

The ALJ found that Maynard had severe impairments due to a
history of subarachnoid hemorrhage, COPD, cervical stenosis, and
obesity.

The ALJ also discussed numerous impairments that were
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medically determinable, but not severe within the meaning of the
Act.

She also found that Maynard’s impairments did not meet or

equal a listed impairment.

The ALJ concluded that Maynard had

the residual functional capacity to do light work under 20
C.F.R. § 404.1567(b), except that she is limited to standing and
walking a combined maximum of four hours out of an eight-hour
workday.

The ALJ also concluded that Maynard should avoid work

requiring constant verbal communication, that she is limited to
work involving occasional depth perception and frequent near
acuity, and that she cannot perform complicated or detailed
tasks.
With that evaluation, the ALJ found that Maynard could not
do her past relevant work as a medical assistant, a medical
device assembler, or a production supervisor.

At step five of

the sequential analysis, relying on vocational expert testimony,
the ALJ found that there were jobs in significant numbers in the
national economy that Maynard could perform, including such
representative occupations as linen sorter, small parts
assembler, and bagger.

Therefore, the ALJ found that Maynard

was not disabled within the meaning of the Act.

The Appeals

Council denied Maynard’s request for review, making the ALJ’s
decision the Acting Commissioner’s final decision.

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Discussion
In support of her motion to reverse the Acting
Commissioner’s decision, Maynard contends that the ALJ erred in
her assessment of Maynard’s residual functional capacity by
improperly evaluating and weighing the medical evidence, failing
to properly consider “other source” evidence, and not addressing
Maynard’s non-severe impairments.

The Acting Commissioner moves

to affirm.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis.

20 C.F.R. §§ 404.1520.

The claimant bears

the burden through the first four steps of proving that her
impairments preclude him from working.

Freeman v. Barnhart, 274

F.3d 606, 608 (1st Cir. 2001).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity, which is a
determination of the most a person can do in a work setting
despite her limitations caused by impairments, see 20 C.F.R. §
404.1545(a)(1), and her past relevant work, see id. at
§ 404.1520(a)(4)(iv)).

If the claimant can perform her past

relevant work, the ALJ will find that the claimant is not
disabled.

See id. at § 404.1520(a)(4)(iv).

If the claimant

cannot perform her past relevant work, the ALJ proceeds to the

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fifth step.

At the fifth step, the Acting Commissioner has the

burden of showing that jobs exist which the claimant can do.
Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).

The

ALJ’s residual functional capacity assessment is reviewed to
determine whether it is supported by substantial evidence.
Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991); Pacensa v. Astrue, 848 F. Supp. 2d 80, 87
(D. Mass. 2012).
I.

Weighing Medical Evidence
An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record.
C.F.R. § 404.1527(b).

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Medical opinions are evaluated based on

the nature of the medical source’s relationship with the
claimant, the consistency of the opinion with the other record
evidence, the medical source’s specialty, and other factors that
may be brought to the ALJ’s attention.

§ 404.1527(c).

The ALJ

may rely on opinions of state agency consultant physicians under
the same analysis as that applied to opinions of treating or
examining medical sources.

§ 404.1527(e); Ormon v. Astrue, 497

F. App’x 81, 84 (1st Cir. 2012); Smallidge v. Colvin, No. 13-cv80-SM, 2014 WL 799537, at *5 (D.N.H. Feb. 28, 2014).
Maynard argues that the ALJ did not provide an adequate
basis for rejecting certain medical opinions in the record in
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determining her residual functional capacity.

Specifically,

Maynard challenges the ALJ’s rejection of Dr. Fairley’s opinion
about her ability to lift and carry and the ALJ’s failure to
give adequate reasons for rejecting that opinion.
As mentioned, the ALJ concluded that Maynard had the
residual functional capacity to do light work under
§ 404.1567(b), with certain limitations.

In making that

determination, the ALJ gave significant weight to most of Dr.
Fairley’s opinions, but rejected the opinion that Maynard was
limited to lifting and carrying up to 10 pounds.

In

explanation, the ALJ noted that “[a]t the hearing, the claimant
testified that she is capable of lifting fifty pounds.”

Admin.

R. at 31.
The transcript of Maynard’s testimony, however, shows that
she testified that the heaviest weight she could lift or carry
was “[u]p to 15 [pounds].”

Admin. R. at 68.

In their joint

statement of facts, the parties state that Maynard testified
“that she was able to lift and carry up to 15 pounds.”
11 at 16.

Doc. no.

Thus, the ALJ’s statement that Maynard testified that

she is capable of lifting 50 pounds is incorrect.
The ALJ also gave little weight to Dr. Fairley’s opinion
that Maynard was limited to lifting 10 pounds because “none of
the claimant’s treating physicians have ever found that the

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claimant has these limitations” and that “there is no medical
evidence of record to show that the claimant is limit[ed] to
lifting ten pounds.”

Admin R. at 31.

Although none of

Maynard’s treating physicians opined that she was limited to
lifting 10 pounds, none of those physicians opined that she
could lift more than 10 pounds, either.

Therefore, the lack of

a second medical opinion limiting Maynard to lifting 10 pounds
is not a sufficient justification for giving Dr. Fairley’s
opinion limited weight.
Further, the ALJ did not explain why Dr. Fairley’s opinion
that Maynard was limited to lifting 10 pounds was inconsistent
with other medical evidence in the record.

The only other

evidence in the record cited by either party regarding
limitations on Maynard’s ability to lift or carry is 1)
Maynard’s July 17, 2013 discharge records from DartmouthHitchcock and 2) Maynard’s September 3, 2013 Function Report.
In the discharge order, Maynard was told not to lift more than
three-to-five pounds.

Admin R. at 693.

Maynard similarly

stated in her Function Report that her conditions limited her to
lifting three-to-five pounds.

Id. at 261.

Thus, there is evidence in the record that Maynard was
either limited to lifting 1) three-to-five pounds (Maynard’s
discharge order and Function Report), 2) 10 pounds (Dr.

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Fairley’s opinion), or 3) 15 pounds (Maynard’s testimony at the
administrative hearing).

The ALJ apparently did not consider

the three-to-five pound limitation and mistakenly thought
Maynard testified that she could lift 50 pounds.

Had the ALJ

agreed with Dr. Fairley’s opinion that Maynard was limited to
lifting 10 pounds, she would have had the residual functional
capacity to do only sedentary work, rather than light work.

See

§ 404.1567(a) (“Sedentary work involves lifting no more than 10
pounds at a time . . . .”).
In contrast, to do light work, Maynard would have to have
the ability to lift and carry more weight than the record
supports.

See § 404.1567(b) (“Light work involves lifting no

more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.”); Hart v. Astrue, 32 F.
Supp. 3d 227, 234 (N.D.N.Y. 2012) (“Plaintiff reads Dr.
Magsino’s opinion as stating that Plaintiff was not capable of
lifting more than 15 pounds.

If that was the case, Plaintiff

would be precluded from performing light work.”); see also
Fuentes v. Colvin, No. 14-CV-03346-KLM, 2016 WL 1068390, at *4
(D. Colo. Mar. 18, 2016) (“Light work requires a person to be
able to lift twenty pounds at a time.”).
The ALJ’s decision appears to be based on her mistaken
interpretation of Maynard’s testimony.

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As a result, the ALJ's

residual functional capacity assessment is not supported by
substantial evidence. See, e.g., Smith v. Colvin, No. 15-cv-48JD, 2015 WL 5822450, at *4 (D.N.H. Oct. 5, 2015); Jabre v.
Astrue, No. 11-cv-332-JL, 2012 WL 1216260, at *9 (D.N.H. Apr. 5,
2012).
II.

Remaining Arguments
Because the ALJ’s residual functional capacity

determination is not supported by substantial evidence for the
reasons stated above, the court does not address Maynard’s
additional arguments, which may be addressed in the context of
the administrative proceedings on remand.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (doc. no. 8) is granted.

The Acting Commissioner’s

motion to affirm (doc. no. 10) is denied.
The case is remanded to the Social Security Administration
under sentence four of § 402(g).

The clerk of court shall enter

judgment accordingly and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
September 14, 2017
cc: Sarah E. Lavoie, Esq.
T. David Plourde, Esq.
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