UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Sprano
v. Civil No. 18-cv-355-JD Opinion No. 2018 DNH 256 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Richard Sprano seeks judicial review, pursuant to 42 U.S.C.
§ 405(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,
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 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,
887 F.3d 7, 13 (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., 955 F.2d 765, 769 (1st Cir. 1991) (internal
quotation marks omitted); accord Purdy, 887 F.3d at 13.
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.” 20
C.F.R. § 404.1527(a)(1).3 An ALJ is required to consider medical
opinions along with all other relevant evidence in a claimant’s
record. 20 C.F.R. § 404.1527(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, 493 U.S. 521, 525, n.3 (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. ---, 2018 WL 6266310, 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,
955 F.2d at 769 ((internal quotation marks omitted); accord
Purdy, 887 F.3d at 13. 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., 2018 WL 1525725, 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. 20 C.F.R. § 404.1545(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, 172 F.3d at 35-36. An ALJ generally cannot
interpret medical data in a claimant’s record in functional
terms. Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d
15, 17 (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, 2018 WL
5342714, 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, 1985 WL 56857, 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.