United States District Court, D. New Hampshire
MCCAFFERTY UNITED STATES DISTRICT JUDGE
Wisell seeks review of a final decision of the Acting
Commissioner of the Social Security Administration denying
his applications for disability insurance benefits
(“DIB”) and Supplemental Social Security Income
(“SSI”). The Administrative Law Judge
(“ALJ”) found that Wisell was not disabled
because he could perform a significant No. of jobs in the
national economy. For the reasons that follow, the decision
of the Acting Commissioner, as announced by the ALJ, is
court must uphold the Commissioner's findings when they
are supported by substantial evidence and the Commissioner
applied the correct legal standard. See 42 U.S.C. §
405(g) (setting out the standard of review for decisions on
DIB claims); see also 42 U.S.C. § 1383(c)(3)
(establishing § 405(g) as the standard of review for
decisions on SSI claims).
responsibility of weighing conflicts in the evidence on
issues of credibility, and drawing inferences from the
record, belongs to the Acting Commissioner. Irlanda Ortiz
v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991).
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.” Tsarleka v. Sec'y of
HHS, 842 F.2d 529, 535 (1st Cir. 1988). The court must
review the record “as a whole when determining whether
substantial evidence support[s] the ALJ's
findings.” West v. Berryhill, No. 17-1170 2017
WL 6499834, at *1 (1st Cir. Dec. 11, 2017).
parties have submitted a Joint Statement of Material Facts
(doc. no. 11) that contains a summary of the facts material
to this case.
alleged onset date of disability (September 30, 2010), Wisell
was 56 years old. For the 15 years prior to the date he was
last insured, Wisell worked as a carpenter and food selector.
His education is limited, and he has problems reading and
doing basic math.
has lower back and left shoulder impairments that stem from a
motor vehicle accident in 1977. In February 2014, Wisell saw
Dr. Peter Loeser for a consultative exam and complained of
pain in his left arm and shoulder. Although Wisell told Dr.
Loeser that the pain and weakness in his arm and shoulder had
been consistent over the “past 5-6 years, ”
Wisell conceded that Loeser was the first doctor he had seen
for the pain. Administrative Record (“Rec.”) at
February 26, 2014, Dr. Natacha Sochat, a state agency
physician, completed an assessment of Wisell's functional
capacity and concluded he could perform a range of light
work, which included a restriction for lifting up to 20
pounds occasionally. Dr. Sochat reached her conclusions after
reviewing Wisell's medical records and without examining
began seeing Dr. Douglas Keene in December 2014. Wisell
complained of problems sleeping due to pain in his back and
arm, which became worse at night. Dr. Keene ordered an MRI
and X-rays. The February 2015 MRI showed degenerative disc
disease throughout the lumbar spine with bone spurs in the
upper region and arthritis in the lower region, and mild
spinal stenosis “secondary to a bulging disc.”
Dr. Keene also noted “extensive vascular
calcification.” Rec. at 466. X-rays of Wisell's
left shoulder showed arthritis and evidence of an old
March 30, 2015, during what was Wisell's fourth visit
with Dr. Keene, Wisell discussed with Dr. Keene the results
of the MRI and X-rays. In a section of his treatment note
entitled, “Discussion/Summary, ” Dr. Keene wrote:
“Limit lifting to 20 lbs.” Dr. Keene recommended
Wisell follow up with a pain clinic and his primary care
physician. Thereafter, Wisell saw a physical therapist and
began taking pain medication. At the hearing, and in response
to a direct question from the ALJ, Wisell testified that Dr.
Keene instructed him “not to lift anything more than 20
pounds.” Rec. at 571-72.
agency physician and orthopedic specialist, Dr. Anthony
Francis, reviewed Wisell's medical records and in a
written opinion dated October 8, 2015, concluded that Wisell
could lift up to 20 pounds frequently and up to 50 pounds
occasionally. The central dispute in this case centers on the
ALJ's decision to adopt Dr. Francis's opinion in her
RFC assessment without mentioning the 20 pound lifting
limitation placed upon him by his treating physician, Dr.
question for the ALJ is whether the claimant is disabled. The
Social Security Act ...