United States District Court, D. New Hampshire
B. Fitzmaurice, Esq., Penelope E. Gronbeck, Esq. Terry L.
A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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.
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 ...