United States District Court, D. New Hampshire
Richard Roger Wilkins, Jr.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration
Barbadoro United States District Judge.
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.
Standard of Review
applicable standard of review in this case provides, in
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)).
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).
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.
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,
underwent a left-hip arthroplasty in February of
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.
of 2015, Dr. Marcia Lipski, a non-examining state-agency
consultant, assessed Wilkins's physical residual
functional capacity (“RFC”). In terms of
exertional capacity, Dr. Lipski opined that Wilkins could:
(1) lift and/or carry 10 pounds frequently and 20 pounds
occasionally; (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.
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.
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