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MacKenzie v. Colvin

United States District Court, D. New Hampshire

February 23, 2016

Timothy MacKenzie,
Carolyn W. Colvin, Acting Commissioner, Social Security Administration. Opinion No. 2016 DNH 034


          JOSEPH DiCLERICO, Jr., District Judge.

         Timothy 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 decision.

         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).


         In this 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.[1]

         MacKenzie 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.

         In 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.

         Dr. 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 his gait.

         State 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 with supervisors.

         In 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."

         The 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 headaches.

         A 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.

         The ALJ 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 ...

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