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Wilkins v. Berryhill

United States District Court, D. New Hampshire

October 15, 2018

Richard Roger Wilkins, Jr.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration


          Paul Barbadoro United States District Judge.

         Richard Wilkins moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny his application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings.

         I. Standard of Review

         The applicable standard of review in this case provides, in pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

42 U.S.C. § 405(g). However, the court “must uphold a denial of social security disability benefits unless ‘the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'” Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         As for the standard of review that applies when an applicant claims that an SSA adjudicator made a factual error,

[s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner's] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement, document no. 10, is part of the court's record and will be summarized here, not repeated in full.

         Wilkins was born in 1964. He last worked in March of 2013, installing exterior trim and siding. In October of 2013, he fell off a ladder, and when he went to the doctor shortly thereafter, an MRI indicated a partial tear of the subscapularis tendon, tendonitis, and a partial tear of the myotendinous junction. In November of 2013, Wilkins injured a hip in a motor vehicle accident. Based upon a diagnosis of avascular necrosis, [1]he underwent a left-hip arthroplasty in February of 2013.[2]

         Wilkins applied for DIB in March of 2015, claiming that he had been disabled since March of 2013, because of arthritis in his hip and back, hip-replacement pain, shortness of breath, and asthma. He later amended the alleged onset date of his disability to November 27, 2013.

         In June of 2015, Dr. Marcia Lipski, a non-examining state-agency consultant, assessed Wilkins's physical residual functional capacity (“RFC”).[3] In terms of exertional capacity, Dr. Lipski opined that Wilkins could: (1) lift and/or carry 10 pounds frequently and 20 pounds occasionally;[4] (2) stand and/or walk, with normal breaks, for a total of about six hours in an eight-hour work day; (3) sit, with normal breaks, for about six hours in an eight-hour work day; and (4) push and/or pull the same amount he could lift and/or carry. In terms of postural limitations, Dr. Lipski opined that Wilkins had an unlimited capacity for balancing, but could only occasionally: (1) climb ramps and stairs; (2) climb ladders, ropes, and scaffolds; (3) stoop; (4) kneel; (5) crouch; and (6) crawl. Finally, Dr. Lipski opined that Wilkins had no manipulative, visual, communicative, or environmental limitations.

         In August of 2015, Jason Dorran, a physician's assistant, completed a Physical Residual Functional Capacity Questionnaire in which he opined that Wilkins's experience of pain or other symptoms would often interfere with his attention and concentration. However, P.A. Dorran declined to offer opinions on any specific functional capacities, stating that “[f]or objective limitations/restrictions, [Wilkins] would need a functional capacity evaluation.” Administrative Transcript (hereinafter “Tr.”) 458.

         In April of 2016, Todd Karalius, an advanced practice registered nurse who had treated Wilkins, wrote a letter addressed to whom it may concern in which he stated:

Based on my examination of Mr. Wilkins and a review of his file, it is my opinion that he meets Listing 1.03 for reconstructive surgery of a major weight-bearing joint. Specifically post surgery on his left hip he cannot ambulate effectively, as defined in 1.00B2b, and is not expected to return to effective ambulation within 12 months. He is not expected to be able to walk a block at a reasonable pace on ...

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