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Wurtele v. Colvin

United States District Court, D. New Hampshire

August 19, 2015

Janice Marie Wurtele,
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.


ANDREA K. JOHNSTONE, Magistrate Judge.

Janice Marie Wurtele seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of the Social Security Administration, denying her application for disability insurance benefits under Title II and supplemental security income under Title XVI. In support, Wurtele argues that the Administrative Law Judge ("ALJ") erred in assessing the medical opinion evidence, which led to an incorrect residual functional capacity assessment. The Acting Commissioner moves to affirm. For the reasons that follow, I recommend that this matter be remanded for further proceedings consistent with this Report and Recommendation.

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 as long as they are supported by substantial evidence. § 405(g). "Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Astralis Condo. Ass'n v. Sec'y Dep't of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).


Wurtele applied for disability insurance benefits and supplemental security income ("SSI") on October 4, 2007, alleging that she had been disabled since August 21, 2007. Wurtele was 46 when she applied for benefits and SSI and had completed four years of college.

A. Medical Evidence

The medical records begin in September of 2007 when Wurtele visited Monica Edgar, ARNP, of Concord Psychiatric Associates. Although Wurtele saw Nurse Edgar for a psychiatric appointment, Nurse Edgar's notes stated that Wurtele had recently been hospitalized with pneumonia. Subsequent treatment notes show that Wurtele was doing fairly well with her depressive symptoms, but exhibited wheezing and easily became lethargic with shortness of breath.

In October of 2007, Wurtele was treated by Dr. Nicole Antinerella for pneumonia follow-up. Dr. Antinerella noted Wurtele's complaints of fatigue, malaise, and dyspnea on exertion. Dr. Antinerella allowed Wurtele to return to work on limited duty.

State agency evaluator Dr. Hugh Fairley completed a Physical Residual Functional Capacity Assessment on December 4, 2007. Dr. Fairley reported Wurtele could occasionally and frequently lift ten pounds, sit for about six hours in an eight-hour workday, and stand or walk for two hours maximum in an eight-hour workday. Dr. Fairley reported no manipulative, visual, or communicative limitations.

Wurtele attended a pulmonary consult with Dr. Thomas Akey on January 18, 2008. Dr. Akey noted a history of abnormal echocardiogram results suggesting pulmonary hypertension, a chest x-ray during Wurtele's hospitalization for pneumonia showing a right lower lobe infiltrate, and mild exertional dyspnea. Dr. Akey reported Wurtele had significant exertional shortness of breath, difficulty with stairs and her daily activities, and a mild dry cough.

State agency pulmonary board certified evaluator Dr. L. Bahadori completed a Medical Source Statement of Ability to do Physical Work-Related Activities on April 28, 2008. Dr. Bahadori opined that Wurtele could sit for six hours without interruption and sit for a total of eight hours in an eight-hour workday. He also opined that Wurtele could walk for fifteen minutes without interruption, stand for thirty minutes without interruption, and walk or stand for a total of two hours in an eight-hour workday.

On March 31, 2009, Dr. Akey completed a Pulmonary Residual Functional Capacity Questionnaire. Dr. Akey reported that Wurtele had shortness of breath and fatigue, and that her pain and other symptoms would frequently interfere with her attention and concentration needed to perform even simple work tasks.

Dr. Edward Catherwood, a cardiologist, wrote an opinion letter for Wurtele on March 12, 2010. Dr. Catherwood wrote that Wurtele had severe pulmonary hypertension as a byproduct of her morbid obesity, and secondary hypoventilation syndrome with obstructive sleep apnea. He also wrote that with medical treatment, Wurtele showed some improvement in her functional capacity, but remained dyspneic, and her condition had the potential to worsen over time. Dr. Catherwood opined that Wurtele could, at most, do sedentary work.

On February 28, 2011, Wurtele had a functional assessment performed by Rachel Health, a physical therapist. Ms. Health's clinical impression was that Wurtele's signs and symptoms were consistent with the physical therapy diagnosis of total body deconditioning, with fluctuating SPO2. Ms. Health reported Wurtele's condition affected her ability to lift, bend, squat, kneel, crawl, dress her lower body, grip, stand, walk, work, get in and out of the car, and perform housework. Ms. Health opined that job accommodations would be ...

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