United States District Court, D. New Hampshire
A. DiClerico, Jr., United States District Judge
Black 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. Black moves to
reverse, contending that the Administrative Law Judge
(“ALJ”) erred in finding that she was not
disabled. 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.
seeks disability insurance benefits, alleging an onset of
disability as of January 1, 2011, due to back pain. She was
thirty-six years old at that time. Her last insured date was
December 31, 2011.
January 3, 2011, Black saw Gayle Sutton, A.P.R.N., following
an incident two days before when she bent over and because of
back pain could not then straighten up. She reported that she
could only move slowly and that her back felt locked. Dr.
Peter Dirksmeier performed a lumbar fusion surgery at the
L4-5 and L5-S1 levels of Black's spine on November 9,
reported to Dr. Dirksmeier on February 3, 2012, that she was
doing well, felt the best she had in a long time, and had
been doing physical therapy which was going well. Dr.
Dirksmeier's notes show that he advised Black to wean off
of narcotic medications, that her fusion would be complete in
the next three months, and that she should continue with
physical therapy to be followed by an independent exercise
April of 2012, Black saw Dr. James Hay and reported that her
TENS unit was helping so that her pain was at zero out of
ten. Dr. Hay wrote that Black's back pain was entirely
controlled by the TENS unit. Black saw Dr. Dirksmeier in May
and reported that she had no pain and was at a higher level
of activity than even before her back incident. Dr.
Dirksmeier cleared Black for increased activities and told
her that she would need exercise, weight loss, conditioning,
and strengthening to prevent issues in the future.
saw Tara Fraser, P.A.C., in May of 2012, and reported that
she was doing well on her antidepressant medication and that
she had no pain. On examination, Fraser found that Black had
no acute distress, normal alignment and mobility, intact
neurological responses, and a good affect and mood.
November of 2012, Black saw Dr. Dirksmeier after a session
with her chiropractor. Black said that she had been doing
well until the chiropractor performed an
“adjustment” on her back that caused her to have
sciatica down the right side. She said that her pain was
seven out of ten.
examination, Dr. Dirksmeier found that Black was not in acute
distress and all tests and observations showed normal
results. Dr. Dirksmeier discussed with Black the effects of
her obesity and deconditioning on her mechanical low back
pain. Dr. Dirksmeier noted that exercise was the key to
improving Black's symptoms. Dr. Dirksmeier also ordered
agency physician Dr. Natacha Sochat reviewed Black's
record in June of 2014. Dr. Sochat found that Black had a
primary severe impairment of degenerative disc disease and a
secondary impairment of obesity. Dr. Sochat also found that
Black could lift and carry ten pounds, stand and walk for a
total of four hours, sit for six hours, and occasionally do
postural activities. In addition, Dr. Sochat noted that Black
had had increased functional limitations right after her back
October of 2015, Loretta Shugre, M.S.W., LIC.S.W., wrote a
letter stating that Black appeared to be capable of working.
Shugre also wrote that Black was then working part time ...