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Desilets v. Colvin

United States District Court, D. New Hampshire

April 1, 2016

Ronald Desilets
Carolyn W. Colvin, Acting Commissioner, Social Security Administration No. 2016 DNH 070



Pursuant to 42 U.S.C. § 405(g), Ronald Desilets moves to reverse the Acting Commissioner’s decision to deny his application for Social Security disability insurance benefits (or “DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, the decision of the Acting Commissioner, as announced by the Administrative Law Judge (“ALJ”), is affirmed.

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). However, the court “must uphold a denial of social security disability 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. That statement, document no. 11, is part of the court’s record and will be summarized here, rather than repeated in full.

Desilets applied for DIB in December of 2012, alleging that he became disabled on December 15, 2011. He later amended his alleged onset date to June 12, 2012. In his Disability Report, he listed the following medical conditions as limiting his ability to work: degenerative disk disease, mitral valve prolapse, [1] diabetes, rotator cuff tears, knee problems, depression, and Tourette’s syndrome. He did not list obesity, and he has never been diagnosed with obesity or treated for that condition. He has occasionally received something called “BMI [body mass index] management, ” Administrative Transcript (hereinafter “Tr.”) 760, 763, 811, and has received counseling on diet and exercise, but only in the context of preventative care, never as a treatment.

In February of 2013, Dr. Burton Nault, a state agency consultant who did not examine Desilets, performed an assessment of Desilets’ residual functional capacity (“RFC”), [2] based upon a review of Desilets’ medical records. The Disability Determination Explanation form that reports Dr. Nault’s RFC assessment lists diagnoses of degenerative disc disease, diabetes mellitus, and obesity, which indicates that Dr. Nault considered all three of those conditions, including obesity, when he assessed Desilets’ RFC. In his assessment, Dr. Nault opined that Desilets could lift and/or carry 20 pounds occasionally and 10 pounds frequently, and could stand and/or walk, and could sit, both with normal breaks, for about six hours in an eight-hour workday. Dr. Nault also opined that Desilets had no postural, manipulative, visual, communicative, or environmental limitations.

In March of 2013, after Dr. Nault had assessed his RFC, Desilets complained about pain in his right shoulder to his primary care provider, Dr. John Ford. Dr. Ford referred Desilets to Dr. Paul Kamins. Dr. Kamins initially diagnosed Desilets with rotator cuff syndrome, not otherwise specified. He operated on Desilets’ right shoulder in October of 2013, and his operative report included a postoperative diagnosis of adhesive capsulitis.[3] After the operation, Desilets was treated with pain medication, injections, home exercise, and occupational therapy.

In March of 2014, Dr. Kamins completed a Medical Source Statement on Desilets. That statement lists a diagnosis of low back pain and notes an “MRI showing disc degeneration & bulging with some foraminal stenosis.” Tr. 924. Dr. Kamins identified exertional, postural, and manipulative limitations that were greater than those identified by Dr. Nault, but he also opined that Desilets had “no problems” reaching with his arms. Tr. 927.

In March of 2014, Dr. Ford completed a Physical Impairment Medical Source Statement on Desilets. Like Dr. Kamins, Dr. Ford identified greater exertional, postural, and manipulative limitation than Dr. Nault did. But, unlike Dr. Kamins, who found that Desilets had no problems reaching with his arms, Dr. Ford opined that Desilets could reach with his left arm for only 10 percent of an eight-hour workday and reach with his right arm for less than 10 percent of an eight-hour workday.

After the Social Security Administration denied Desilets’ application for DIB, he received a hearing before an ALJ. At that hearing, Desilets testified that he weighed 264 pounds, and that his weight was down a little from what it had been several years earlier. He gave no further testimony ...

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