United States District Court, D. New Hampshire
Landya McCafferty United States District Judge
Pursuant to 42 U.S.C. § 405(g), Carlie Boyer moves to reverse the Acting Commissioner’s decision to deny her 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.
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) (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) (per curiam) (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) (per curiam) (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) (per curiam). 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. 13. That statement is part of the court’s record and will be summarized here, rather than repeated in full.
Boyer alleges that she became disabled on November 15, 2011. Two days before that, she had been “brought to the [St. Joseph Hospital] emergency room . . . after being found at the bottom of an embankment near the Nashua River [after] falling some 20 to 25 feet down.” Administrative Transcript (hereinafter “Tr.”) 420. As a result of her fall, Boyer fractured one or more ribs and her left thumb, suffered compression fractures of the endplates of several lumbar vertebrae, and dislocated her left hip. She was treated with physical therapy and medication, and appears to have left the hospital with a walker.
In December of 2011, Boyer began seeing Dr. Susanne Zimmermann as her primary care physician. On January 5, 2012, Boyer telephoned Dr. Zimmermann’s office asking for “a note about whether or not she can return to any type of work and when etc.” Tr. 668. After that request was relayed to Dr. Zimmermann, she told her nurse that Boyer “should be able to return to work at this time.” Id. Dr. Zimmermann’s nurse, in turn, told Boyer, on January 6, that “Dr. Zimmermann states she may return to work without restrictions.” Tr. 667 (emphasis added). However, in the “Plan” section of a progress note dated January 16, which resulted from a visit in which Boyer complained of knee pain, Dr. Zimmermann reported that she gave Boyer “a note stating that she cannot do any bending or lifting [of] more than 10 pounds and no prolonged standing for the next 4 months.” Tr. 666.
Before Boyer fell down the embankment, diagnostic imaging had shown minimal degenerative changes in her right hip joint and mild degenerative changes in her feet and lumbar spine. In June of 2008, she saw a doctor for possible rheumatoid arthritis, but the physician stated that “[h]er symptoms are more consistent with a non-inflammatory type of arthritis such as osteoarthritis.” Tr. 357. After her fall, Boyer was diagnosed with “[s]ubtle degenerative changes involv[ing] the medial compartments of both knees, ” Tr. 630. In addition, Boyer has been diagnosed with: benign positional vertigo (possibly related to head trauma sustained during her fall), atypical chest pain, alcohol abuse/withdrawal, elevation in transaminases and dilation of the common bile duct, hepatitis C, and osteopenia of the left femoral neck.
Turning from Boyer’s physical health to her mental health, she has been diagnosed with: anxiety, anxiety disorder NOS, anxiety disorder with obsessive thinking, alcohol dependence in remission, depressive disorder, major depression with panic disorder, remitting major depression, obsession-compulsion disorder (by history), persecutory type delusional disorder, and rule-out obsessive compulsive disorder. For those conditions, Boyer has been treated with Zoloft, Trazadone, and counseling.
The record includes three formal opinions on Boyer’s physical abilities to perform work-related activities. Those opinions are summarized, briefly, below.
On September 27, 2012, approximately 10 months after Boyer’s fall, Dr. Dewi Brown performed a consultative examination of Boyer. Dr. Brown diagnosed Boyer with status-post posterior dislocation, left hip; status-post lumbar vertebral fractures; status-post multiple rib fractures; status-post fractured terminal phalanx, left thumb; status-post colectomy for diverticulitis; status-post alcoholism; probable degenerative arthritis, great toe; and labyrinthine dysfunction, possible vertigo. See Tr. 708. With regard to Boyer’s ability to function, Dr. Brown had this to say:
She could dress herself slowly. She cannot stand for very long or even sit for [a] very long period. Bending is very difficult as is lifting and carrying. Squatting, kneeling, and climbing are also a problem. . . .
. . . If she were to get back to work at this point, it [w]ould have to be very light, that is 10 pounds of lifting occasionally or 5 pounds frequently. She would ...