United States District Court, D. New Hampshire
DiCLERICO, Jr., District Judge.
MacKenzie seeks judicial review, pursuant to 42 U.S.C. §
405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
disability insurance benefits and supplemental security
income. In support of his motion to reverse, MacKenzie
contends that the Administrative Law Judge ("ALJ")
erred in assessing his residual functional capacity, which
resulted in an erroneous determination that he was not
disabled. The Acting Commissioner moves to affirm the
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).
district, parties in a social security case are required to
prepare and file a joint statement of material facts that
"describe[s] all facts pertinent to the decision of the
case and all significant procedural developments, and
define[s] all medical terms." LR 9.1(c) & (e).
Therefore, the background facts are summarized from the
parties' joint statement of material facts.
applied for social security benefits in September of 2012,
alleging that he had been disabled since November 12, 2008.
He was thirty-three years old when he filed his application.
Although he left school after the ninth grade, MacKenzie then
earned a high school equivalency diploma, known as a GED.
December of 2012, Dr. Matthew Masewic did a consultative
orthopedic examination of MacKenzie. Dr. Masewic found that
MacKenzie had some degenerative disk disease in his neck,
greater on the right side, but noted that he was not able to
do a complete examination because MacKenzie would not allow
it, claiming pain. Dr. Masewic concluded that the functional
issues and pain MacKenzie complained of were not related to
his neck and that either MacKenzie was embellishing his
symptoms or he had another disorder that had not been
diagnosed. In functional terms, Dr. Masewic found that
MacKenzie's degenerative disk disease had a mild to
moderate effect on his functional capacity and that his lower
back pain, which could not be properly examined, would also
have a mild to moderate effect on his functional capacity.
Masewic noted that MacKenzie had a greater range of motion
while in his office than he demonstrated during the physical
examination and that MacKenzie's complaints of pain were
out of proportion to his ability to walk, lie down, and sit
in a chair. Dr. Masewic also noted significant discrepancies
between MacKenzie's reports of impairment and his
demonstrated abilities. For example, while MacKenzie claimed
a loss of sensation and weak grip strength in his hands,
those impairments were inconsistent with a lack of atrophy in
his hands, with normal dexterity, and his ability to pick
things up and use his right hand to get off the examination
table. Dr. Masewic wrote that MacKenzie's story about
having to tape a hammer to his hand to use it was
"preposterous". MacKenzie also displayed a
protected and broad-based gait that Dr. Masewic found
"strange" because his neck issues would not affect
agency psychologist Laura Landerman, Ph.D., reviewed
MacKenzie's records in January of 2013. Dr. Landerman
concluded that MacKenzie had moderate difficulty in
maintaining social functioning. She also found that MacKenzie
was at most moderately limited in his ability to interact
November of 2013, MacKenzie's physical therapist, Rachel
Heath, completed two forms for MacKenzie, a "Medical
Source Statement of Ability to Do Work-Related
Activities" and a "Rehab Report: Evaluation Summary
with Functional Assessment." The Rehab Report was also
signed by MacKenzie's primary care physician, Dr.
Christopher Allen. On both forms, Heath indicated that
MacKenzie was limited in his ability to do manipulative
activities, such as fine motor tasks, reaching, fingering,
and handling, which he could do occasionally. Heath noted,
however, that MacKenzie used less than maximum effort during
the testing and that he demonstrated a "minor
discrepancy in level of consistency to the reliability and
accuracy of pain and disability."
hearing on MacKenzie's application was held on January
14, 2014. MacKenzie testified that he was currently homeless,
living in a tent in the woods, and that he worked part time
for friends doing jobs like picking up brush and sticks to
make fire piles and keeping their job sites neat. He also
testified that he was taking 15 milligrams of Oxycontin eight
times a day in order to be able to get up and move around and
that on some days he stayed in bed all day covered in heating
pads and crying. He said that his arms and hands were
completely numb and that he suffered from severe migraine
vocational expert participated in the hearing by telephone.
The ALJ posed a hypothetical to the vocational expert of a
person limited to light work with certain postural
limitations and restrictions in the work setting. The
vocational expert testified that such a person could do jobs
as a price marker, mail sorter, and collator operator.
MacKenzie's counsel asked the vocational expert to add
the physical limitations that MacKenzie's physical
therapist indicated in her Medical Source Statement. In
response, the vocational expert said that person could work
as a surveillance-system monitor and a callout operator.
issued a decision on January 24, 2014, finding that MacKenzie
was not disabled. The Appeals Council denied MacKenzie's
request for review, making the ALJ's ...