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Fisher v. Colvin

United States District Court, D. New Hampshire

October 18, 2016

Mark Fisher
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 184

          Sheila O'Leary Zakre, Esq. Robert J. Rabuck, Esq.


          Joseph DiClerico, Jr. United States District Judge

         Mark Fisher 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 supplemental security income. In support, Fisher contends that the Administrative Law Judge (“ALJ”) erred in finding that he was not disabled because substantial evidence supports the issues he raises and that the Acting Commissioner failed to meet her burden of showing that jobs exist that he could do. 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).

         As a preliminary matter, Fisher, who is represented by counsel, misunderstands the standard of review. In support of his motion to reverse the Acting Commissioner's decision, he argues that substantial evidence supports the issues he raises and contends that the ALJ's findings were, therefore, erroneous. Even if substantial evidence supports Fisher's claims of error, the court will affirm the Acting Commissioner's decision as long as substantial evidence in the record also supports the ALJ's findings. See, e.g., Nguyen, 172 F.3d at 35 (“The ALJ's findings of fact are conclusive when supported by substantial evidence . . . .”); Misterka v. Colvin, 2016 WL 5334656, at *6-*7 (D. Mass. Sept. 22, 2016) (As long as substantial evidence supports the ALJ's finding, “it is not for this court to re-weigh the evidence.” [internal quotation marks omitted]).

         Despite counsel's mistake, the court will review Fisher's claims under the applicable standard of review.


         Fisher applied for supplemental security income under Title XVI on July 8, 2013, alleging disability due to a variety of impairments, including cirrhosis of the liver. He was forty-eight years old when he applied. He had completed the ninth grade and had worked as a janitor, a machine operator, and a security guard.

         Fisher was diagnosed with non-alcoholic steatohepatitis (“NASH”) in 2013 that progressed to cirrhosis of the liver. He was hospitalized from June 29 to July 1, 2013, based on his family's report that he was confused and talking nonsense. On intake, the assessment noted was “delirium prob. Metabolic/hepatic encephalopathy with hyperammonemia -- ? NASH vs. Etoh liver ds-His LFT patters w liver ds, but pt. And wife denies any use of etoh for few years.” The urine test in the emergency room was negative for alcohol. Fisher's mental status screening and neurological examinations at the hospital were normal. On discharge, he was diagnosed with hepatic encephalopathy.

         Fisher was hospitalized in September of 2013 for gastrointestinal bleeding. His neurological and psychiatric examinations were normal. Lactulose, a medication to treat advanced liver disease, was added to Fisher's medication regimen.

         Dr. Johnathan Jaffe, a state medical consultant, reviewed Fisher's medical records and issued a report on September 30, 2013. Dr. Jaffe concluded that Fisher could do light work but would need to avoid concentrated exposure to hazards such as machinery.

         From October 6 to October 8, 2013, Fisher was again hospitalized because of hepatic encephalopathy. Fisher's wife reported that Fisher had had several episodes of confusion along with dizziness and had acted as though he were drunk. Fisher's urine screen was negative for alcohol. On admission, he was diagnosed with altered mental status that was suspected to be caused by acute hepatic encephalopathy which was likely because of inadequate lactulose. His dose of lactulose was increased, and he improved. At a follow up appointment with Dr. Knight, Fisher reported being tired but denied any neurological or psychiatric problems.

         Fisher was hospitalized again for hepatic encephalopathy from November 17 to November 18, 2013. His wife reported that he had been more spaced out and had had staring episodes, and Fisher said that he had been feeling loopy. His psychiatric and neurological examinations were normal. At his follow up appointment, Fisher's treating physician, Dr. Eric Knight, reported that Fisher had acute hepatic ...

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