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Morse v. Colvin

United States District Court, D. New Hampshire

June 6, 2016

Daniel Morse
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 095


         Pursuant to 42 U.S.C. § 405(g), Daniel Morse moves to reverse the Acting Commissioner’s decision to deny his application for Social Security disability insurance benefits 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, 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). 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. 12, is part of the court’s record and will be summarized here, rather than repeated in full.

         Morse was born in 1980 and graduated from high school in 2000. While in high school, he attended special education classes and was assigned a classroom aide.

         In November 1998, Morse took the Wechsler Adult Intelligence test (WAIS-R). His results indicated a verbal intelligence quotient ("IQ") of 77, a performance IQ of 64, and a full-scale IQ of 70.

         After graduating from high school, Morse worked as a retail clerk and as a cleaner. Since March of 2011, he has worked part time for D&J Professional Image ("D&J") doing general cleaning.

         All of Morse’s jobs have been arranged by the New Hampshire Bureau of Vocational Rehabilitation ("NHVR"). The record includes a letter, dated February 25, 2014, from Cynthia Capodestria, who is a vocational counselor at NHVR. According to Capodestria:

[Morse’s] curr#0nt case opened a year ago. Our work with Daniel over the last 14 years leads us to conclude that he is working to his full potential in a highly supported work environment . . . . His current employer [D&J] offers special training and accommodations for Daniel’s physical work capacity and cognitive abilities.

         Administrative Transcript (hereinafter "Tr.") 261. The record also includes a letter from D&J’s Jason Thibodeau, who noted that he has "given Dan a great deal of leeway, " Tr. 180, and also described various limitations in Morse’s ability to work.[1] Like Capodestria, Thibodeau stated that Morse was working to his maximum potential.

         In May of 2013, Dr. Edward Martin, a state-agency consultant who did not examine Morse, performed a psychiatric review technique ("PRT")[2] based upon an analysis of the record. Dr. Martin concluded that Morse’s mental impairments did not meet the Social Security Administration’s criteria for either organic mental disorders (Listing 12.02) or anxiety disorders (Listing 12.06). Dr. Martin did not consider the SSA’s criteria for intellectual disability (Listing 12.05).[3]

         In January of 2014, Morse took another intelligence test, the WAIS-IV. This testing was undertaken as part of a psychological evaluation performed by Dr. Michael Mills, on referral from NHVR. After stating that Morse’s test "results are considered a reliable and valid assessment of his current functioning, " Tr. 276, Dr. Mills reported a full-scale IQ of 59 and scores of 72 in verbal comprehension, 56 in perceptual reasoning, 71 in working memory, 62 in processing speed, and 60 in general ability. Based upon his examination of Morse and a battery of testing, Dr. Mills gave the following relevant diagnosis: "Extremely low intellectual functioning IQ = 59 (previously labeled Mild Mental Retardation)." Tr. 283. Dr. Mills concluded his Psychological Report with a series of recommendations, including a list of more then 50 accommodations that would benefit Morse either in training or on the job.[4]

         After the SSA denied Morse’s claim for benefits, he received a hearing before an Administrative Law Judge ("ALJ"). The ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

2. The claimant engaged in substantial gainful activity during the following periods June 1, 2007 through December 31, 2008 and from July 1st 2011 through June 30, 2012 (20 CFR 404.1520(b) and 404.1571 et seq.).
. . . .
3. However, there has been a continuous 12-month period(s) during which the claimant did not engage in substantial gainful activity. The remaining findings address the period(s) the claimant did not engage in substantial gainful activity.
. . . .
4. The claimant has the following severe impairments: borderline intellectual functioning, anxiety and a speech ...

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