United States District Court, D. New Hampshire
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.
Standard of Review
applicable standard of review in this case provides, in
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)).
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)).
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.
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.
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.
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
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.
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. Like Capodestria, Thibodeau
stated that Morse was working to his maximum potential.
of 2013, Dr. Edward Martin, a state-agency consultant who did
not examine Morse, performed a psychiatric review technique
("PRT") 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
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.
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
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
. . . .
4. The claimant has the following severe impairments:
borderline intellectual functioning, anxiety and a speech