Hastings v. US Social Security Administration, Commissioner

Filing 20

///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 12 Motion to Affirm Decision of Commissioner. 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 by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Carrie Hastings
v.

Civil No. 17-cv-84-JL
Opinion No. 2018 DNH 185

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.
reverse the decision.

See LR 9.1.

Hastings has moved to
The Acting Commissioner of

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

See id.

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., 211 F.3d 652, 655 (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,” id., that is, “such evidence as a
reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (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., 955 F.2d 765, 769 (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., 76 F.3d 15, 16 (1st Cir. 1996)
(per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885
(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
Klingebeil again denied Hastings’s claim.6

ALJ

The Appeals Council

vacated the second denial and remanded the case for another
hearing.7

Following that hearing, ALJ Levin denied Hastings

The court 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.
1

2

Admin. R. at 91.

“The law defines disability as
substantial gainful activity by
determinable physical or mental
to result in death or which has
last for a continuous period of
C.F.R. § 404.1505(a).
3

4

Admin. R. at 82.

5

Id. at 82-83.

6

Id. at 62.

7

the inability to do any
reason of any medically
impairment which can be expected
lasted or can be expected to
not less than 12 months.” 20

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 20 C.F.R. §§ 404.1520, 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 20 C.F.R. §§ 404.1520(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 20 C.F.R. §§ 404.1567(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.”
§ 404.983.

20 C.F.R.

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, 2010 DNH 095, 2 (quoting Thompson v. Astrue, 583 F.
Supp. 2d 472, 475 (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, 490 U.S. 877, 885-86 (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.”
533, 536 (6th Cir. 2002).25

25

Hollins v. Massanari, 49 F.App’x

But here, ALJ Levin’s reconsideration

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, 2016 WL 4146083, at *2 (D. Me. Aug. 3, 2016), report
and recommendation, adopted by 2016 WL 5854510 (D. Me. Oct. 6,
2016) (citing Day v. Astrue, No. 1:12-cv-141-DBH, 2012 WL
6913439, at *5 (D. Me. Dec. 30, 2012), report and recommendation
adopted by 2013 WL 214571 (D. Me. Jan. 18, 2013)); see also
Drummond v. Comm’r Soc. Sec., 126 F.3d 837, 842 (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, 599 F. Supp. 1164,
1168 (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.,

826 F.2d 136, 140 (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, 490 U.S. at 885-86.

In an effort to assist the parties in bringing this longrunning claim to a conclusion, the court briefly addresses
plaintiff’s other assertions of error.

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

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., 898 F.2d 1106, 1109 (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.
argument.

The Acting Commissioner has the better of the

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.

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

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.
reverse34 is therefore GRANTED.
motion to affirm35 is denied.

The plaintiff’s motion to

The Assistant Commissioner’s
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:
cc:

September 12, 2018

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

34

Doc. no. 9.

35

Doc. no. 12.
13