UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stanley Wisell

v. Civil No. 17-cv-227-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

Stanley Wisell seeks review of a final decision of the

Acting Commissioner of the Social Security Administration

denying his applications for disability insurance benefits

(“DIB”) and Supplemental Social Security Income (“SSI”). The

Administrative Law Judge (“ALJ”) found that Wisell was not

disabled because he could perform a significant number of jobs

in the national economy. For the reasons that follow, the

decision of the Acting Commissioner, as announced by the ALJ, is

reversed.

STANDARD OF REVIEW

The court must uphold the Commissioner’s findings when they

are supported by substantial evidence and the Commissioner

applied the correct legal standard. See

(g)

(setting out the standard of review for decisions on DIB

claims); see also

(c)(3) (establishing § 405(g)

as the standard of review for decisions on SSI claims). The responsibility of weighing conflicts in the evidence on

issues of credibility, and drawing inferences from the record,

belongs to the Acting Commissioner. Irlanda Ortiz v. Sec’y of

HHS,

(1st Cir. 1991). The court “must uphold

the [Acting Commissioner’s] conclusion, even if the record

arguably could justify a different conclusion, so long as it is

supported by substantial evidence.” Tsarleka v. Sec’y of HHS,

(1st Cir. 1988). The court must review the

record “as a whole when determining whether substantial evidence

support[s] the ALJ’s findings.” West v. Berryhill, No. 17-1170

, at *1 (1st Cir. Dec. 11, 2017).

FACTUAL BACKGROUND

The parties have submitted a Joint Statement of Material

Facts (doc. no. 11) that contains a summary of the facts

material to this case.

At his alleged onset date of disability (September 30,

2010), Wisell was 56 years old. For the 15 years prior to the

date he was last insured, Wisell worked as a carpenter and food

selector. His education is limited, and he has problems reading

and doing basic math.

Wisell has lower back and left shoulder impairments that

stem from a motor vehicle accident in 1977. In February 2014,

Wisell saw Dr. Peter Loeser for a consultative exam and

2 complained of pain in his left arm and shoulder. Although

Wisell told Dr. Loeser that the pain and weakness in his arm and

shoulder had been consistent over the “past 5-6 years,” Wisell

conceded that Loeser was the first doctor he had seen for the

pain. Administrative Record (“Rec.”) at 207.

On February 26, 2014, Dr. Natacha Sochat, a state agency

physician, completed an assessment of Wisell’s functional

capacity and concluded he could perform a range of light work,

which included a restriction for lifting up to 20 pounds

occasionally. Dr. Sochat reached her conclusions after

reviewing Wisell’s medical records and without examining Wisell.

Wisell began seeing Dr. Douglas Keene in December 2014.

Wisell complained of problems sleeping due to pain in his back

and arm, which became worse at night. Dr. Keene ordered an MRI

and X-rays. The February 2015 MRI showed degenerative disc

disease throughout the lumbar spine with bone spurs in the upper

region and arthritis in the lower region, and mild spinal

stenosis “secondary to a bulging disc.” Dr. Keene also noted

“extensive vascular calcification.” Rec. at 466. X-rays of

Wisell’s left shoulder showed arthritis and evidence of an old

fracture.

On March 30, 2015, during what was Wisell’s fourth visit

with Dr. Keene, Wisell discussed with Dr. Keene the results of

3 the MRI and X-rays. In a section of his treatment note entitled,

“Discussion/Summary,” Dr. Keene wrote: “Limit lifting to 20

lbs.” Dr. Keene recommended Wisell follow up with a pain clinic

and his primary care physician. Thereafter, Wisell saw a

physical therapist and began taking pain medication. At the

hearing, and in response to a direct question from the ALJ,

Wisell testified that Dr. Keene instructed him “not to lift

anything more than 20 pounds.” Rec. at 571-72.

A state agency physician and orthopedic specialist, Dr.

Anthony Francis, reviewed Wisell’s medical records and in a

written opinion dated October 8, 2015, concluded that Wisell

could lift up to 20 pounds frequently and up to 50 pounds

occasionally. The central dispute in this case centers on the

ALJ’s decision to adopt Dr. Francis’s opinion in her RFC

assessment without mentioning the 20 pound lifting limitation

placed upon him by his treating physician, Dr. Keene.

DISCUSSION

The question for the ALJ is whether the claimant is

disabled. The Social Security Act defines “disability” as the

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment [lasting at least a year and is] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .

4

(d)(2)(A); see also

at § 1382c(a)(3)(A)-(B).

“Thus, ‘disability’ under [the Act] has a ‘medical’ part,

concerning the nature and severity of a claimant’s impairment,

and a ‘vocational’ part, concerning the availability of suitable

work.” Goodermote v. Sec’y of HHS,

(1st Cir.

1982).

The SSA regulations contain a five-step sequential process

the ALJ must use in deciding whether a claimant is disabled

under this statute. See

& 416.920.1 The

first step requires a finding that claimant has not been

working; the second requires a finding that the claimant has a

severe impairment; the third inquires whether the impairment is

listed in the Appendix 1 regulations,2 and if it is not, then the

ALJ must proceed to answer the fourth and fifth steps, which are

“vocational tests.” § 404.1520. The fourth requires that the

ALJ calculate the claimant’s “residual functional capacity”

1 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

2 If the impairment is listed, the analysis is over and claimant’s application is granted.

5 (“RFC”),3 and determine that the impairment prevents claimant

from performing past relevant work. The fifth requires that

there be no other work in the national economy that claimant

could perform.

(a)(4).

The burden remains with the claimant at steps one through

four. At step five, the burden shifts to the Acting

Commissioner to show that there are jobs in the national economy

that claimant can perform. West,

, at *1;

Goodermote,

.

Here, Wisell claims that the ALJ erred in over-calculating

his RFC and not addressing the lifting limitation prescribed by

Dr. Keene, Wisell’s treating physician. The Acting Commissioner

disagrees and argues that Dr. Keene is not a treating physician,

and that his lifting limitation was “vague and indefinite”

because it did not contain any durational component. As such,

the Acting Commissioner argues that the ALJ was not required to

consider Dr. Keene’s assessment of Wisell’s exertional

limitations.

I. Treating Physician

The Acting Commissioner’s first argument is that Dr. Keene

is not a “treating physician” because he did not meet with

“Residual functional capacity” is a term of art that means 3

“the most [a claimant] can still do despite [his] limitations.”

.

6 Wisell a sufficient number of times. The regulations define a

“treating source” as one who provides a claimant “with medical

treatment or evaluation and who has, or has had, an ongoing

treatment relationship” with claimant.

(a)(2). A physician who evaluates a claimant “only a

few times” may qualify as a “treating [physician] if the nature

and frequency of the treatment or evaluation is typical for

[claimant’s] condition.”

Wisell was a patient at the Cheshire Medical Center, where

it appears he saw several different providers. Based on his

medical record, however, Dr. Keene is the physician with whom

Wisell had the most contact concerning the precise question in

dispute in this case: the pain in his back and arm. Indeed, it

was Dr. Keene who ordered the MRI and X-rays to determine if

there was objective medical evidence of the pain Wisell

described to him.

At Wisell’s fourth visit, Dr. Keene instructed Wisell not

to lift any more than 20 pounds. Dr. Keene’s course of

treatment included a total of four in-person visits, diagnostic

X-rays and an MRI, physical tests of Wisell’s mobility, and a

recommendation for physical therapy and pain medication.

As such, Dr. Keene treated Wisell for his back and arm pain

within the meaning of a “treating physician” and the ALJ was

7 required to “give good reasons” for the weight accorded to Dr.

Keene’s opinion. § 404.1527(c)(2); see Pelletier v. Colvin, No.

CV 14-30105-MGM,

, at *4 (D. Mass. Sept. 11,

2015) (“Accordingly, remand is appropriate when the ALJ fails to

indicate what weight, if any, was given to a treating source’s

opinion, and fails to give ‘good reasons’ in the notice of

determination for such omission.”).

II. Durational Component

The Acting Commissioner argues that even if Dr. Keene is a

treating physician, the ALJ’s failure to address his assessment

of Wisell’s exertional limitations is harmless because the

assessment does not contain any durational component. She notes

that under the Social Security Act, a claimant is disabled only

if he has an impairment “which has lasted or which can be

expected to last for a continuous period of not less than 12

months.” §§ 423(d)(1)(A) & 1382c(a)(3)(A). The Acting

Commissioner argues that because Dr. Keene did not explain how

long he expected Wisell’s lifting limitation to last, the ALJ’s

failure to address Dr. Keene’s opinion does not require remand.

A review of both Wisell’s treatment records from Dr. Keene

and other providers at the Cheshire Medical Center, as well as

other medical opinion evidence in the record, could support an

inference that the lifting limitation would have lasted 12

8 months. Therefore, the court cannot conclude that the ALJ’s

error was harmless.

A. Cheshire Medical Center Medical Records

Dr. Keene’s opinion of Wisell’s exertional limitations

appears in a treatment note from an in-person appointment to

discuss the results of Wisell’s MRI and X-rays. Rec. at 502.

As discussed above, that note is part of a larger set of medical

records from Dr. Keene and other treatment providers at Cheshire

Medical Center who saw Wisell for his back pain and arm pain, as

well as a variety of other health issues, including skin cancer

and hearing problems.

Prior to instructing Wisell not to lift more than 20

pounds, Dr. Keene had examined Wisell on three occasions:

December 8 and 18, 2014, and January 22, 2015. Medical records

for those previous visits memorialize and detail Dr. Keene’s

judgments about the nature and severity of Wisell’s pain.

During his first visit with Dr. Keene (December 8, 2014), Wisell

complains that he “has trouble sleeping, usually due to pain

. . . [and] is having more pain in his back and arm at night

. . . .” Rec. at 494. During his second visit (December 18),

Wisell complains of “left shoulder pain,” and Dr. Keene orders

an X-ray of his left shoulder. Dr. Keene notes that Wisell “has

significantly limited range of motion.” Rec. at 481.

9 Again, on January 22, 2015, Wisell visits Dr. Keene

complaining about shoulder and back pain. Rec. at 474. Dr.

Keene notes that Wisell rated his low back pain at “8” on the

“pain scale.” Rec. at 472. Dr. Keene’s treatment notes address

Wisell’s limited range of motion:

He has tenderness over the low back and the lower lumbar region over the paraspirous musculature bilaterally. He is able to flex approximately 60° and external 5°. Lower extremities DTRs are 2+ of the patellar reflexes 1+ of the ankle refex bilaterally. Straight leg raise test is negative bilaterally.

Rec. at 471. Also in his treatment notes from that visit Dr.

Keene writes: “He has chronic back and shoulder pain. He had X-

rays of the left shoulder which showed [an] old clavicle

fracture and significant degenerative changes in the

glenohumeral joint with exophytic formation.” Rec. at 470. Dr.

Keene then ordered an MRI. Dr. Keene’s diagnostic notes after

he reviews the MRI state:

Degenerative disc disease at all levels of lumbar spine with bone spurs upper and arthritis lower in the lumbar spine. Patient has a history of chronic low back pain. Spine clinic at Dartmouth if patient wishes. Transportation may be a problem that he needs assistance with.

Rec. at 466.

It is during Wisell’s final visit with Dr. Keene, on March

30, 2015, that Dr. Keene instructs him not to lift anything

greater than 20 pounds. The “Reason for Visit” (at the top of

10 the note) states: “follow up mri results.” Id. Under “Topics

Covered,” the first entry is “low back pain.” Id. Under

“Discussion/Summary,” the note states: “Limit lifting to 20 lbs.

Follow up in Dermatology and Pain Clinic. Stop smoking. Follow

up with PCP in 3 months.” Id. In a section of the note that

records “Vitals,” there is an entry on a chart for “pain scale”

at “8” and for “pain location” at “back.” Id.

Thereafter, Wisell saw Dr. Mark A. Horton at Cheshire

Medical Center who referred him for a lumbar evaluation and

physical therapy. See Rec. at 510-16. The last medical record

from Cheshire Medical Center is dated July 7, 2015, and

indicates that Wisell saw David S. Segal, a physician’s

assistant, who prescribed pain medication for pain in Wisell’s

left shoulder that Wisell rated as an “8” or “8/10” on the pain

scale. Rec. at 517.

Wisell’s medical records from Cheshire Medical Center show

that he suffered from and sought treatment for back and arm pain

over the course of several months. These records support an

inference that the lifting limitation imposed by Dr. Keene was

more than merely a temporary restriction.

B. Dr. Sochat’s Opinion

In addition, other opinion evidence in the record supports

Dr. Keene’s opinion and gives rise to the inference that the

11 lifting limitation was more than temporary. Specifically, Dr.

Sochat, a state agency physician, reviewed Wisell’s medical

records in February 2014 (before the MRI and X-rays existed and

more than a year before Dr. Keene gave his lifting limitation)

and concluded—similarly to Dr. Keene—that Wisell had an

exertional limitation for lifting up to 20 pounds occasionally.

The ALJ states that she gave Dr. Sochat’s opinion little weight

“as she did not examine the claimant nor did she review all of

the evidence [of] record.” Although the ALJ’s decision to give

Dr. Sochat’s opinion little weight may have been reasonable, Dr.

Keene both examined Wisell multiple times and ordered the X-rays

and MRI, the critical diagnostic evidence in Wisell’s medical

record. Therefore, particularly in light of Dr. Sochat’s

similar opinion from more than a year earlier, the ALJ should

have, but did not, address Dr. Keene’s opinion.

III. Summary

In light of Dr. Keene’s status as a treating physician, the

ALJ was obligated to address his opinion as to the lifting

limitation and give good reasons for discounting that opinion.

In light of the other medical evidence in the record, the court

cannot conclude that the ALJ’s failure to do so was harmless.

12 CONCLUSION

For these reasons, the Acting Commissioner’s motion for an

order affirming her decision, document no. 10, is denied, and

Wisell’s motion to reverse that decision, document no. 8, is

granted. The case is remanded for further proceedings pursuant

to sentence four of

(g). The clerk of court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 3, 2018

cc: Counsel of Record

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