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Keene v. Colvin

United States District Court, D. New Hampshire

October 27, 2014

Dennis R. Keene,
Carolyn W. Colvin, Acting Commissioner, Social Security Administration,


LANDYA McCAFFERTY, District Judge.

Pursuant to 42 U.S.C. § 405(g), Dennis Keene moves for reversal of the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 423. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, the decision of the Acting Commissioner, as announced by the Administrative Law Judge ("ALJ"), is affirmed.

Standard of Review

The applicable standard of review in this case provides, in pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Acting] Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive....

42 U.S.C. § 405(g). However, the court "must uphold a denial of social security disability benefits unless the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v. Sec'y of HHS , 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson , 490 U.S. 877, 885 (1989)).

As for the statutory requirement that the Acting Commissioner's findings of fact be supported by substantial evidence, "[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts." Alexandrou v. Sullivan , 764 F.Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner , 360 F.2d 727, 730 (2d Cir. 1966)). In turn, "[s]ubstantial evidence is more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Currier v. Sec'y of HEW , 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). But, "[i]t is the responsibility of the [Acting Commissioner] to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the [Acting Commissioner], not the courts." Irlanda Ortiz v. Sec'y of HHS , 955 F.2d 765, 769 (1st Cir. 1991) (citations omitted). Moreover, the court "must uphold the [Acting Commissioner's] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence." Tsarelka v. Sec'y of HHS , 842 F.2d 529, 535 (1st Cir. 1988). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must "review[] the evidence in the record as a whole." Irlanda Ortiz , 955 F.2d at 769 (quoting Rodriguez v. Sec'y of HHS , 647 F.2d 218, 222 (1st Cir. 1981)).


The parties have submitted a Joint Statement of Material Facts, document no. 11. That statement is part of the court's record and will be summarized here, rather than repeated in full.

In 1997, when he was 30 years old, Keene had a heart attack, and subsequently returned to work. In 2007, he suffered another heart attack, which also caused a stroke. His heart attack and stroke put him out of work for about a year. Then, in May of 2011, he retired from his job as a glass evaporator machine operator, due to: (1) numbness in his leg, which prevented him from making his daily commute to Massachusetts; and (2) back pain.

In his initial application for DIB benefits, filed on August 10, 2011, Keene identified the following illnesses or conditions as the basis for his claim: stroke, heart attack, diabetes, anxiety, obesity, multilevel spinal lumber stenosis, degenerative disc disease, panic attacks, depression, and arthritis in his back. See Administrative Transcript (hereinafter "Tr.") 86. The record includes diagnoses of diabetes; several lower-back conditions; generalized anxiety disorder; and major depressive disorder, mild, recurrent.

Treatment for Keene's back conditions has included medication, epidural injections, facet blocks, facet joint injections, physical therapy, and home exercise. Doctors have also recommended weight loss, and determined that Keene was a poor candidate for surgery because of his obesity. Treatment for his diabetes has included medication.

On December 29, 2011, a state-agency consultant, Dr. Jaffe, offered various opinions regarding Keene's physical residual functional capacity ("RFC").[1] With regard to exertional limitations, Dr. Jaffe opined that Keene could: (1) occasionally lift and/or carry 20 pounds; (2) frequently lift and/or carry 10 pounds; (3) stand and/or walk for a total of two hours, with normal breaks, in an eight-hour workday; (4) sit for about six hours, with normal breaks, in an eight-hour workday; (5) push and or pull 20 pounds occasionally and 10 pounds frequently. He also stated that Keene needed to stand up hourly and walk around for five to ten minutes to alleviate back pain. With regard to postural limitations, Dr. Jaffe opined that Keene could occasionally climb ramps and stairs; climb ladders, ropes, and scaffolds; balance; kneel; crouch; and crawl. Finally, Dr. Jaffe identified no manipulative, visual, communicative, or environmental limitations.

In early 2012, Dr. James Fitzgerald, who has treated Keene since 2005, submitted a letter that states, in pertinent part:

He [Keene] is currently unable to work in any capacity due to multiple medical illnesses.
Mr. Keene has already suffered a stroke and a relatively large myocardial infarction.... He will need lifelong anti-coagulation with coumadin. In addition, he is treated for severe spinal stenosis which is ongoing and not amenable to surgical correction at this time. This causes chronic, daily pain for which he is being treated.
He is under the care of several specialists including cardiology, orthopedic surgery, pain management, and anesthesia.
Because of these conditions, he is unable to work in any capacity.

Tr. at 459.

After conducting a hearing on January 31, 2013, the ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he could occasionally lift up to 20 pounds and frequently ten pounds. Standing and walking would be limited to two hours each with sitting up to six hours. He could occasionally climb ramps and stairs, with no climbing of ladders, ropes, or scaffolds. He could occasionally stoop, kneel, crouch, crawl, and balance. The claimant would have to change positions hourly during the workday, for approximately 5-10 minutes. He could engage and interact with others, but he would have limited ability to engage in sustained, regular, ongoing frequent speech. He should a avoid temperature extremes, as well as exposure to concentrated levels of fumes, dusts, gases, and other respiratory irritants. The claimant could understand, remember, and carry out simple, 1-3 step tasks. He should avoid more complicated 4-5 step tasks, or greater. He has the ability to ...

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