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Hulen v. Colvin

United States District Court, D. New Hampshire

February 9, 2016

Michael David Hulen
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 025

Jared P. O’Connor, Esq.

Terry L. Ollila, Esq.



Pursuant to 42 U.S.C. § 405(g), Michael Hulen moves to reverse the Acting Commissioner’s decision to deny his applications 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)).

II. Background

The parties have submitted a Joint Statement of Material Facts, document no. 18. That statement is part of the court’s record and will be summarized here, rather than repeated in full.

Hulen was incarcerated in the New Hampshire State Prison (“NHSP”) from December of 2003 until September of 2009. He was on parole for approximately three and one half years, but went back to prison in 2013 as a result of a parole violation.

In January of 2010, Hulen applied for SSI and DIB. In a Function Report that Hulen submitted in conjunction with his application, he stated that he could walk 300 to 500 feet before needing to stop and rest for three to five minutes. He also stated that he did not do yard work because it was “just too painful and hard to do on crutches.” Tr. 155. Finally, he stated that he had received a prescription for crutches in December of 2009 and always used them.

After performing a consultative examination at the request of the Social Security Administration, Dr. Ralph Wolf diagnosed Hulen with bilateral degenerative arthritis in his knees. For his arthritic knees, Hulen has been treated with pain medication, injections, and physical therapy. Surgery has been considered, but ruled out because of Hulen’s obesity.[1]

At his hearing, Hulin testified that he was given crutches during a visit to a hospital emergency room in December of 2009. In a letter dated April 8, 2010, addressed to whom it may concern, nurse Nancy Clayman of Harbor Health Care Clinic wrote:

He [Hulen] continues to need crutches and obviously has difficulty with ambulation. This now has caused other issues, such as acute carpel tunnel syndrome.

Tr. 391. The apparent purpose of Clayman’s letter was to encourage the people running the shelter where Hulen was staying to let him remain in the facility during the day, so he could keep off his feet and take a break from using his crutches. Shortly after Clayman wrote the letter quoted above, Dr. Dana O’Shea gave Hulen a prescription for forearm crutches, [2] which were intended to relieve the pressure on Hulen’s wrists and hands that resulted from using standard crutches. When Hulen went back to prison after his parole violation, he was issued a cane, but was not allowed to have crutches.

In the report on his consultative examination in May of 2010, Dr. Wolf noted: “The claimant ambulated with an antalgic gait using two single-prong crutches.” Tr. 316. Dr. Wolf concluded his report with the following recommendation:

Any full-time sitting or driving activity with a minimal amount of walking should be possible now and for the long-term future. Heavy manual labor and prolonged weight bearing is not recommended.

Id. at 317.

In May of 2010, non-examining state-agency consultant Dr. Charles Meader stated, in a Physical Residual Functional Capacity Assessment, that “crutches use is not continuous according to MER [medical evidence of record] and there is no MER to indicate they were prescribed 12/2009.” Tr. 319. When assessing Hulen’s symptoms, Dr. Meader explained:

MER indicates there is MDI [medically determinable impairment] support for allegations but no direct MER evidence for crutches continuously needed or medically prescribed in 12/2009 as claimed. Claimant thus is not credible in this context. He did not need ambulatory aids at 9/9/2009 prison infirmary visit. He further states he can walk 300-500 feet before resting 2-3 minutes.

Tr. 323. In the narrative section of his assessment, Dr. Meader added to his discussion of Hulen’s use of crutches:

MER indicates morbid obesity and deconditioned. Released from long prison incarceration 5/2003 to parole 9/2009. [Social Security Administration] [i]nterviewer intake observation face to face indicated: “He was walking with the help of crutches. He was rubbing his knee while seated. He had a lot of ...

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