United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 405(g), Derrick Hentschel, proceeding pro
se, moves to reverse the Acting Commissioner's decision
to deny his applications for Social Security disability
insurance benefits, or DIB, under Title II of the Social
Security Act, 42 U.S.C. § 423, and for supplemental
security income, or SSI, under Title XVI, 42 U.S.C. §
1382. The Acting Commissioner, in turn, moves for an
affirming her decision. Those motions are before this
magistrate judge for a report and recommendation. For the
reasons that follow, the decision of the Acting Commissioner,
as announced by the Administrative Law Judge
(“ALJ”) should be affirmed.
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) (setting out the standard of review
for DIB decisions); see also 42 U.S.C. §
1383(c)(3) (establishing § 405(g) as the standard of
review for SSI decisions). However, the court “must
uphold a denial of social security . . . 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, doc.no. 31, is part of the court's record
and will be summarized here, rather than repeated in full.
filed his applications for DIB and SSI on November 13, 2013,
at which time he was incarcerated in the New Hampshire State
Prison (“NHSP”). He was released in March of
2014, was reincarcerated on a parole violation from December
of 2014 through February of 2015, was arrested again on April
23, 2015, and is now serving a term of six to fifteen years
in the NHSP.
has been diagnosed with physical impairments affecting his
back and his left knee, as well as mental impairments
including post-traumatic stress disorder
(“PTSD”), amphetamine dependence, cocaine abuse,
cannabis dependence, and antisocial personality disorder.
regard to Hentschel's physical capacity for work, the
record includes opinions from Dr. Peter Loeser, Dr. Jonathan
Jaffe, Dr. Robert Bassett, and Dr. Oliver Hertfort.
April 2014, Dr. Loeser performed a consultative examination
of Hentschel in which he was asked to consider a left knee
injury, a back injury, a head injury, and Hepatitis
his examination report, Dr. Loeser identified no positive
findings associated with Hentschel's back, but noted
several positive findings associated with his left knee, and
gave the following diagnosis: “Left knee [degenerative
joint disease] with noted past meniscus surgery with apparent
relatively acute changes. Low back pain of uncertain
etiology.” Administrative Transcript (hereinafter
“Tr.”) 849. As for Hentschel's functional
capacity, Dr. Loeser wrote:
The patient states [that] these symptoms [i.e., left
knee and low back pain] are having a significant impact on
overall function, and based on the current findings, there is
sufficient evidence to support a degree of impact on the
patient's ability to function related to his left knee.
Dr. Loeser performed his consultative examination, Dr. Jaffe,
a consulting physician who neither treated nor examined
Hentschel, assessed Hentschel's physical residual
functional capacity (“RFC”). But, Dr.
Jaffe's opinions are not at issue here, so there is no
need to describe them in detail.
1, 2014, Dr. Robert Bassett, an orthopaedic surgeon who had
been treating Hentschel for several months, wrote two letters
describing Hentschel's knee condition and its effects on
his ability to function. One letter states, in full:
Derrick Hentschel has endstage osteoarthritis of his left
knee and requires a knee arthrodesis. He is too young for a
total knee [replacement]. He is not a candidate for work
involving prolonged standing or walking.
857. In his second letter, addressed “to whom it may
concern, ” Dr. Bassett noted a diagnosis of severe
tricompartmental osteoarthritis of Hentschel's left knee,
described the various forms of treatment Hentschel had
received, and then opined:
This treatment has been only of marginal effect for him. His
only reasonable orthopaedic treatment at this stage is a
right knee fusion, fusing his knee in full extension, which
would be in [and] of itself a disabling problem. His knee
pain is severe but that level of disability is more than he
can tolerate at this stage. Currently, any sort of work
involving torquing, twisting, standing, [or] walking is very
problematic for him. He is seeking social security
assistance, and this appears to be quite appropriate for him
at this stage.
August 2014, another treating physician, Dr. Oliver Hertfort
of Associates in Medicine, wrote a letter to whom it may
concern which states, in full:
Mr. Hentschel is a patient at Associates in Medicine. He has
premature and significant degenerative disease of the
thoracic and lumbar spine with narrowing of the canal and
nerve exit sites. In addition he has end stage degenerative
disease of the knee which usually requires total knee
replacement but is not indicated because of his young age.
In my medical opinion the patient's joint disease
qualifies him for social security and disability status.
in December 2014, Dr. Bassett completed a Medical Source
Statement of Ability to do Work-Related Activities (Physical)
on Hentschel. In it, he opined that Hentschel could
occasionally lift/carry up to 20 pounds, sit for one hour at
a time and six hours in an eight-hour workday, stand for one
hour at a time and two hours in an eight-hour workday, and
walk for 30 minutes at a time and two hours in an eight-hour
workday. He further opined that Hentschel needed a cane to
ambulate, but could use his free hand to carry small objects
while using a cane. In addition, Dr. Bassett opined that
Hentschel could continuously use his hands for reaching,
handling, fingering, feeling, and pushing/pulling, and could
frequently use his feet to operate foot controls. As for
postural activities, Dr. Bassett opined that Hentschel could
never climb stairs, ramps, ladders, or scaffolds; balance;
stoop; kneel; crouch; or crawl. As for environmental
limitations, Dr. Bassett opined that Hentschel could never
tolerate exposure to unprotected heights or operate a motor
vehicle, could occasionally tolerate vibrations, could
frequently tolerate moving mechanical parts, and could
continuously tolerate humidity, wetness, dust, odors, fumes,
pulmonary irritants, extreme cold, extreme heat, and very
loud noise. Dr. Basset also opined that Hentschel was capable
of: shopping; traveling without a companion for assistance;
ambulating without using a wheelchair, walker, or two canes
or two crutches; walking a block at a reasonable pace on
rough or uneven surfaces; using standard public
transportation; climbing a few steps at a reasonable pace
with the use of a single hand rail; preparing a simple meal
and feeding himself; caring for personal hygiene; and
sorting, handling, and using paper/files.
regard to Hentschel's mental capacity for work, the
record includes opinions from Dr. Dennis Becotte, Dr. Craig
Stenslie, and Dr. Bassett.
March 2014, Dr. Becotte performed a consultative
psychological examination of Hentschel and produced a Mental
Health Evaluation Report on him. Dr. Becotte indicated
diagnoses of mixed personality disorder with aspects of
borderline personality and antisocial personality disorder
and stimulant use disorder. With respect to ...