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Hentschel v. Berryhill

United States District Court, D. New Hampshire

January 5, 2018

Derrick David Hentschel
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         Pursuant 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.

         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) (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)).

         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, doc.no. 31, is part of the court's record and will be summarized here, rather than repeated in full.

         Hentschel 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.

         Hentschel 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.

         With 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.

         In 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 C.[1]In 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.

Id.

         After 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”).[2] But, Dr. Jaffe's opinions are not at issue here, so there is no need to describe them in detail.

         On July 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.[3]

         Tr. 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.

         Tr. 951.

         In 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.

         Tr. 992.

         Finally, 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.

         With regard to Hentschel's mental capacity for work, the record includes opinions from Dr. Dennis Becotte, Dr. Craig Stenslie, and Dr. Bassett.[4]

         In 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 ...


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