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Black v. Acting Commissioner, Social Security Administration

United States District Court, D. New Hampshire

April 30, 2018

Sarah Black
v.
Acting Commissioner, Social Security Administration

          ORDER

          Joseph A. DiClerico, Jr., United States District Judge

         Sarah 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.

         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.

         Background

         Black 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.

         On 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, 2011.

         Black 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 program.

         In 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.

         Black 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.

         In 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.

         On 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 physical therapy.

         State 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 surgery.

         In 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 ...


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