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Morse v. Colvin

United States District Court, D. New Hampshire

March 17, 2015

Charles Morse, Jr.
Carolyn Colvin, Acting Commissioner, Social Security Administration Opinion No. 2015 DNH 055.


LANDYA McCAFFERTY, District Judge.

Pursuant to 42 U.S.C. § 405(g), Charles Morse moves to reverse the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings consistent with this order.

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 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) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court "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 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. 19). That statement is part of the court's record and will be summarized here, rather than repeated in full.

Over the years, Morse has received extensive medical treatment, resulting in diagnoses of both physical and mental conditions. Physically, he has been diagnosed with, among other things, degenerative disc disease of the lumbar spine, uncontrolled diabetes mellitus, and "[s]evere complex sleep disordered breathing [i.e., sleep apnea] in the setting of morbid obesity, " Administrative Transcript ("Tr.") 651. Mentally, he has been diagnosed with major depression and panic disorder. In a disability report completed in conjunction with his application for social security benefits, Morse identified his impairments as: "Bipolar [disorder], mental health issues, [posttraumatic stress disorder], low back pain, breathing problems, obesity, [gastroesophageal reflux disease], gout, sleep apnea, diabetes, learning disability, memory loss, herniated disc, and degenerative disc [disease]." Tr. 378.

With regard to the interplay between Morse's various conditions, the record includes the diagnosis quoted above, which links Morse's obesity with his sleep apnea. In addition, Dr. Lawrence Jasper, a consulting psychologist, wrote a "Comprehensive Psych Profile - Adult" that includes the following relevant passage:

He reports that he will go to bed at 8:00 or 9:00 p.m.
Asked about the reasons [why] he cannot get to sleep until 3:00 in the morning even though he goes to bed at 8:00 or 9:00 he reports that he is awake because "I'm afraid to go to sleep because I'm afraid I'm going to stop breathing in my sleep." Despite this report of a high degree of fear he reports that he will not wear a face mask designed to alleviate sleep apnea because it dries up his mouth excessively.

Tr. 791.[1]

Morse applied for DIB and SSI in May 2009. His claim worked its way through the administrative process, which concluded with an unfavorable decision from an administrative law judge ("ALJ"). See Tr. 99-107.

Thereafter, the Decision Review Board ("DRB") remanded Morse's claim to the ALJ with a set of instructions including the following: "Further evaluate the nature and severity of all of the claimant's impairments at step 2 of the sequential evaluation process and beyond."[2] Tr. 116 (emphasis added).

On remand, the ALJ conducted a second hearing. After that hearing, the ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine, obesity and diabetes mellitus, uncontrolled (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he can lift ten pounds frequently and can stand or walk for two hours in an eight-hour workday and sit for six hours in an eight-hour workday. The claimant has unlimited use of the feet and hands to operate controls and to push and pull. He requires the opportunity to change positions as need[ed] to alleviate discomfort and pain, which may include brief standing or walking. He can occasionally, balance, stoop, kneel[, ] crouch, crawl and climb ramps and stairs, but must never climb ...

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