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Wisell v. Berryhill

United States District Court, D. New Hampshire

April 3, 2018

Stanley Wisell
Nancy A. Berryhill, Acting Commissioner of Social Security



         Stanley 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 reversed.


         The 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).

         The 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).


         The parties have submitted a Joint Statement of Material Facts (doc. no. 11) that contains a summary of the facts material to this case.

         At his 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.

         Wisell 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 207.

         On 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 Wisell.

         Wisell 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 fracture.

         On 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.

         A state 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. Keene.


         The question for the ALJ is whether the claimant is disabled. The Social Security Act ...

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