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Kiesman v. Acting Commissioner

United States District Court, D. New Hampshire

April 17, 2018

Pamela Kiesman
Acting Commissioner, Social Security Administration

          Karen B. Fitzmaurice, Esq., Penelope E. Gronbeck, Esq. Terry L. Ollila, Esq.



         Pamela Kiesman seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of Social Security, denying her application for disability benefits under Title II of the Social Security Act. Kiesman moves to reverse on the grounds that the Administrative Law Judge (“ALJ”) erred in weighing medical opinions, in assessing her residual functional capacity, and in finding she could return to her previous work. The Acting Commissioner moves to affirm.

         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); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). Substantial evidence is “more than a scintilla of evidence” but less than a preponderance of the evidence. Purdy v. Berryhill, ___ F.3d ___, 2018 WL 1601791, at *3 (1st Cir. Apr. 3, 2018) (internal quotation marks omitted). When the record could support differing conclusions, the court must uphold the ALJ's findings “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal quotation marks omitted); accord Purdy, 2018 WL 1601791, at *4.


         Kiesman worked as an administrative clerk at a church until December of 2004, when she was forty-two years old. She stopped working because her work hours had been cut so that the job did not justify her travel time and because she decided to take care of her father-in-law. Two years later, in October of 2006, Kiesman injured her back when she was riding through a field in a truck and the truck hit a sink hole.

         An MRI of her back showed a burst fracture at ¶ 1. Kiesman was treated with physical therapy, steroid injections, and prescription pain medication. Because Kiesman continued to complain of pain, her primary care physician, Dr. David Riss, prescribed pain medication over the next few years. Dr. Riss refilled Kiesman's pain medication prescriptions but said he would do drug testing as required by Kiesman's pain management contract.

         In June of 2009, Kiesman applied for disability benefits. She saw Dr. Riss a month later, complaining of aching all over and lacking energy. On examination, Dr. Riss stated that the results were good and that he did not know what was wrong with Kiesman. Dr. Riss referred Kiesman to an orthopedic specialist, Dr. Jerry Knirk, who did an examination and noted that his objective findings did not justify the large amount of narcotic pain medication that Kiesman was taking. Dr. Knirk ordered physical therapy.

         Dr. Riss completed a questionnaire in August of 2009 for Medicaid. He indicated that Kiesman could only lift less than ten pounds, could stand or walk for less than two hours in an eight-hour day, and could sit for less than six hours. Dr. Riss also indicated limitations in her ability to push and pull and to do postural activities.

         At first Kiesman improved with physical therapy. After several months, however, she stopped attending appointments because of financial and transportation issues. She was discharged in June of 2010. Dr. Knirk saw Kiesman again in January of 2011. He noted that Kiesman had not stayed with physical therapy long enough to benefit and that she had changed “her clinical story” to add issues that were not present at her last examination in November of 2009. Dr. Knirk found no objective basis for Kiesman's complaints of pain and ordered physical therapy.

         Kiesman asked Dr. Riss to refer her to another specialist. In April of 2011, Dr. Riss referred Kiesman to Maine Medical Partners Neurosurgery and Spine Unit.

         In June of 2012, Dr. Riss completed a physical capacity questionnaire for Kiesman with the same limitations indicated in the 2009 questionnaire except that he increased her limitations as to postural activities. Dr. Riss also indicated that Kiesman had no ability to do handling, feeling, or fingering activities but amended the questionnaire six months later by crossing out those limitations. He left the parts of the form blank that asked for medical findings to support his assessments. In a letter dated July 30, 2012, Dr. Riss stated that Kiesman could not even do a sedentary job but noted that she had seen neurosurgeons and orthopedic doctors for her impairments.

         Kiesman's last insured date for social security benefits was December 31, 2009. In January of 2012, Kiesman applied for benefits due to disability that she claimed was caused by a broken back and anxiety. Her application was denied initially and was again denied following a hearing before an ALJ. Kiesman sought review under § 405(g), and in response the Commissioner conceded error, agreeing that the case should be remanded. The court remanded the case and ordered “rehearing to develop a more robust evidentiary record.”

         On remand, the ALJ held a second hearing on February 11, 2016, and June 9, 2016. Kiesman appeared, with her attorney, and testified. A medical expert, Dr. Louis Fuchs, board certified in orthopedic medicine, testified at the hearing based on his review of Kiesman's medical records. A vocational expert also testified.

         The ALJ issued a decision on August 4, 2016, finding that as of December 31, 2009, Kiesman had the residual functional capacity to perform light work with additional limitations of being able to stand or walk for four hours and sit for six hours and the option to change positions as needed. The ALJ also found that she could occasionally do postural activities and could occasionally reach overhead and do handling and fingering activities. Based on that assessment, the vocational expert testified that Kiesman could return to her previous work as an administrative clerk. As a result, the ALJ concluded that Kiesman was not disabled. The Appeals Council denied review.


         Kiesman contends that the ALJ erred in relying on the opinion of Dr. Fuchs, in giving little weight to Dr. Riss's opinion, in assessing her residual functional capacity, and in failing to explain the conflict between the Dictionary of Occupational Titles (“DOT”) and Kiesman's previous work as an administrative clerk. The Acting Commissioner contends that the ALJ appropriately weighed and considered the medical opinion evidence, accurately assessed Kiesman's ...

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