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Gilbert v. Colvin

United States District Court, D. New Hampshire

June 16, 2015

Robert Roland Gilbert
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.


LANDYA McCAFFERTY, District Judge.

Pursuant to 42 U.S.C. § 405(g), Robert Gilbert moves to reverse the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits 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 matter is remanded to the Acting Commissioner for further proceedings consistent with this order.

I. 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). 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)).

II. Background

The parties have submitted a Joint Statement of Material Facts, document no. 9. That statement is part of the court's record and will be summarized here, rather than repeated in full.

Gilbert claims that he became disabled on January 25, 2006.[1] He reports that in August of 2005, he injured his back while lifting a manhole cover at work.[2] For the purposes of eligibility for disability insurance benefits, Gilbert was last insured on March 31, 2008. At the time of the incident with the manhole cover, Gilbert was working as a construction laborer, a job that is classified by the Dictionary of Occupational Titles at the "heavy" exertional level. His relevant occupational history also includes employment: (1) in shipping and receiving, and as a door builder, both classified as "medium" work; (2) as a sink maker, classified as "very heavy" work; and (3) as a painting supervisor, which was "light" work, as he performed it.

In October of 2005, Gilbert was diagnosed with a severe disc injury with disc deteriorations. That diagnosis was based on a radiological examination of his lumbar spine showing "severe degenerative changes at L5-S1 with complete disc collapse in the end plate with degenerative changes as well." Administrative Transcript (hereinafter "Tr.") 388.

In September of 2005, Gilbert saw Dr. David Ouyang for an annual physical examination and complaints of low back pain. Gilbert saw Dr. Ouyang once more in September of 2005, twice in November of 2005 and again on January 9, 2006. On that date, Dr. Ouyang completed a New Hampshire Workers' Compensation Medical Form in which he opined that Gilbert could return to full-time work with modifications. Those modifications were reflected in Dr. Ouyang's findings that Gilbert could: (1) perform fine motor skills without restriction; (2) frequently drive; (3) occasionally kneel, squat, stand, walk, sit, and reach; and (4) not bend or climb. Dr. Ouyang also stated that Gilbert could only lift/carry five to ten pounds, but could do so frequently.

Gilbert continued to treat with Dr. Ouyang from January 25 2006, through June 4, 2007, and saw him pretty much monthly during that period. At each visit, Dr. Ouyang performed a physical examination. Moreover, between January 25, 2006, and March 22, 2007, Dr. Ouyang completed 16 more workers' compensation medical forms in which he indicated that Gilbert could not return to work.

In a letter dated April 10, 2006, Dr. Ouyang had this to say:

Please be informed that ROBERT R GILBERT is under my care for medical treatment and has been seen by an Orthopedic Spine Specialist - he has been found to have surgical disease in his back and is pending surgery. I do believe this is a result of work injury and I strongly believe [Gilbert] deserves worker's compensation.

Tr. 352. In a letter dated September 1, 2006, addressed to whom it may concern, Dr. Ouyang wrote:

ROBERT R GILBERT is under my care for chronic low back pain requiring surgical Rx s/p Orthopedic Spine surgery recommendation, utilizing Titanium Disc. [Gilbert] cannot work until surgery [is] completed due to severe low back pain and surgical disease.

Tr. 744. Dr. Ouyang expressed a similar opinion in a letter dated January 19, 2007:

Please be informed that ROBERT R GILBERT is under my care for medical treatment and has undergone evaluation by an Orthopedic Spine Surgeon, who feels Robert needs a Titanium Disc Replacement as one of his Lumber Discs has completely eroded. He is unable to work ...

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