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Martel v. U.S. Social Security Administration

United States District Court, First Circuit

November 18, 2013

Daniel Martel
U.S. Social Security Administration, Commissioner No. 2013 DNH 157.


PAUL BARBADORO, District Judge.

Daniel Martel seeks judicial review of a ruling by the Commissioner denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Martel claims that findings of the Administrative Law Judge ("ALJ") regarding his residual functional capacity ("RFC") and his ability to perform past relevant work are not supported by substantial evidence. For the reasons set forth below, I deny Martel's request and affirm the decision of the Commissioner.


A. Procedural History

Martel applied for DIB and SSI on June 28, 2008, alleging a disability onset date of April 23, 2006. After the Commissioner denied his application, Martel requested a hearing before an ALJ, which was held on February 18, 2010. Martel was represented by an attorney and testified at the hearing, but no medical or vocational expert ("VE") testified. On April 22, 2010, the ALJ issued a decision finding that Martel was not disabled under the Social Security Act. On July 26, 2010, the Social Security Decision Review Board, after reviewing Martel's claim, remanded the case to the ALJ to hold a second hearing and further develop the record.

On June 16, 2011, the ALJ held a second hearing. Martel, again represented by an attorney, testified, as did a medical expert and VE. On July 28, 2011, the ALJ issued his decision, again finding Martel not disabled. On December 3, 2012, the Appeals Council denied Martel's request for review, making the ALJ's decision the Commissioner's final decision and therefore subject to judicial review.

B. Medical History

Martel was fifty-two years old on his alleged onset date. From roughly 1977 to 1995, he worked as a machine operator. After his employer closed its facility, Martel worked as a general laborer through various temporary employment agencies from 1995 until 2006. During this period, he worked as a machine operator, fabrics layer, and mail sorter, among other positions. Tr. at 280. Martel claims that he became disabled in 2006 due to both physical and mental impairments.

1. Alleged Physical Impairments

In August 2002, Martel underwent a liver biopsy for hepatitis C, resulting in a final diagnosis of "chronic hepatitis C with grade 3 activity and stage 3 fibrosis."[2] In a consultative examination with Dr. Darlene Gustavson, Psy.D., Martel reported that hepatitis had never interfered with his job functioning. Tr. at 342. Dr. Gustavson included a diagnosis of hepatitis B and C in her final report. Dr. John Newcomb also noted Martel's history of hepatitis. In March 2011, nurse practitioner Jill St. George ordered further laboratory testing for Martel's hepatitis. At his February 18, 2010 hearing, Martel was questioned by his attorney about his hepatitis. He reported that he had the disease, but expressed uncertainty as to what treatments he received. Tr. at 35. During his June 16, 2011 hearing, Martel noted that he had once undergone treatment for five months, but stopped when it made him sick. Tr. at 61.

2. Alleged Mental Impairments

a. Treatment Notes

From at least March 2006 through December 2009, Martel was treated by Leslie Clukay, a nurse practitioner at the Mental Health Center of Greater Manchester. Clukay's treatment notes from this period consistently refer to Martel as "anxious" and note that his speech was hesitant on several visits. At times, Martel's mood was described as "euthymic" or "not depressed."[3] Medication lists show that Martel frequently took Zoloft, though in February 2009 he switched to Citalopram after complaining about Zoloft's ineffectiveness.[4] In July 2009 Clukay discontinued Citalopram and switched Martel back to Zoloft.

On a visit in September 2006, Martel denied having depressive symptoms and reported feeling "really good, " but was noted to be quite anxious at baseline. In January 2007, Martel reported that he wanted to work but was limited by his inability to drive. In September 2007, Martel expressed frustration with his continuing job search. Otherwise, he reported feeling "ok" and that his medication was "fine." Tr. at 322. Clukay observed no evidence of depressive or panic symptoms, but noted that Martel's affect was flat. Id . Martel reported continuing frustration with his job search and unemployment in January 2008, at which point he also reported panic upon leaving his house. In May 2008, Martel reported continuing to avoid crowds and social situations and requested a decrease in his medication dosage to alleviate a side-effect of excessive sweating.

In February 2009, Martel reported being more anxious and that his medication was not working. At this point, Clukay characterized Martel's mood as "anxious, not depressed." Tr. at 38. During a follow-up appointment in May, Martel said that the medication made him less anxious and that his mood had stabilized. Clukay found Martel's attention span and concentration to be normal, his memory intact, his mood euthymic, and his affect very anxious. In July 2009, Martel reported that he had ceased taking medication due to its ineffectiveness and reported increased depressive and anxious symptoms. Clukay observed that Martel's memory was intact and attention span and concentration were normal, though he was anxious and preoccupied. She discontinued Citalopram and again prescribed him Zoloft. In August 2009, Clukay noted that Martel reported "increased depressive symptoms." Tr. at 383.

b. Consultative Examinations and Opinions

i. Dr. Darlene Gustavson

On August 29, 2008, Dr. Gustavson conducted a consultative psychological evaluation of Martel. Martel rode his bicycle to the appointment, explaining that he had lost his driver's license in 2006 for a second DUI offense and did not wish to reinstate it. Dr. Gustavson, noting Martel's profuse sweating, facial expressions, and hand-wringing, observed that he appeared extremely anxious. Martel often answered questions slowly and vaguely, especially concerning alcohol consumption. When he began answering questions honestly, he appeared less anxious. Martel acknowledged drinking two beers before the eleven a.m. evaluation and reported that he drinks at least ten beers per day "to face the world". He admitted to drinking heavily since his early twenties.

Assessing his own mental condition, Martel reported depression beginning in childhood and described his symptoms as chronic, including never being happy; feeling worthless, helpless, apathetic, fatigued, and socially isolated; having passive suicidal thoughts; sleeping excessively; and having a decreased appetite when drinking. He also reported anxiety since childhood, manifesting in symptoms including avoiding social situations, discomfort in conversation, nervousness, and hand-wringing. Martel stated that he felt safe when by himself and nervous when outside his home. When nervous, he reported excessive sweating, which in turn only made him more selfconscious. Martel reported that he had been seeing a psychiatrist quarterly since the 1990s, that he was currently prescribed Zoloft, and that he had never been psychiatrically hospitalized.

Martel also discussed his family, social, and environmental history. He reported living with his father, brother, and brother's girlfriend. He described a positive relationship with his family, but noted no other significant intimate relationships. Martel dropped out of school after ninth grade, but later obtained his GED. While in school he was not enrolled in special education programs, but reported a history of learning difficulties and assessed himself as a "slow learner."

Martel reported that he previously worked at Anchor Electric, beginning as a spot welder before working as a metal cutter for seventeen years. After the company went out of business in 1995, Martel held only temporary positions. He reported that his most recent job involved stacking pallets, where he was let go after six weeks for being too slow. Dr. Gustavson noted that his dismissal, in 2006, coincided with the loss of his driver's license, and that the lack of transportation played a role in his failure to find another position. Describing his work history, Martel reported no reprimands or warnings and claimed that he was able to follow instructions, communicate with supervisors, and maintain attendance.

Assessing Martel's mental status, Dr. Gustavson first noted his appropriate hygiene but disheveled appearance. Martel's motor activity was jittery and anxious, and his speech was delayed at times, which Dr. Gustavson reasoned was due to anxiety and difficulty with comprehension. Dr. Gustavson noted, however, that Martel's articulation and speech were normal, his language comprehension appeared intact, and his affect was appropriate. Martel's mood was anxious, but as he became less nervous, he stopped sweating, relaxed his posture, and laughed and smiled. Dr. Gustavson noted that Martel was anxious and his judgment and insight were limited, but she found him to be cooperative, with logical thought processes and normal thought content.

Dr. Gustavson placed Martel's intellectual functioning in the low-average to average range, with suspicions of a learning disability. Martel scored in the normal range with a 27/30 on the Folstein Mini-Mental Status Examination.[5]

Martel then recounted his typical day: waking up at ten a.m., drinking beer, reading the newspaper to search for jobs, completing household chores such as mowing the lawn, eating a meal prepared by his father, taking medications, attending appointments as needed, watching television, playing guitar, and going to bed between 10:00 p.m. and 2:00 a.m. after drinking as many as ten beers. No social activities were reported, though Gustavson noted that Martel did not require assistance to attend to his personal affairs, go shopping, cook, use public transportation, pay bills, maintain his residence, or care for his personal hygiene.

Assessing Martel's current level of functioning, Dr. Gustavson opined that he was able to understand and remember instructions, to sustain attention and complete tasks, and to tolerate stresses common to a work environment, including the ability to make decisions, maintain attendance, and interact with supervisors. Concerning social functioning, Dr. Gustavson opined that Martel was unable to interact appropriately and communicate effectively with unfamiliar people. She recommended that Martel continue mental health treatment and begin a rehabilitation program. Dr. Gustavson diagnosed Martel with physiological alcohol dependence, generalized social phobia, and hepatitis B and C.

ii. Dr. John Newcomb

On January 28, 2010, Martel underwent a consultative psychiatric examination with Dr. Newcomb. Martel reported taking Zoloft but believed it to be ineffective. He admitted past difficulty with alcohol, but claimed to have ceased drinking in 2007. Martel's brother drove him to the examination due to Martel's claimed inability to drive himself as a result of anxiety and confusion.

Dr. Newcomb noted that Martel appeared disheveled, but oriented to time, place, and person. He reported that Martel had a depressed mood, blunted affect, and admitted to crying spells.[6] Dr. Newcomb found that Martel had poor concentration and "disturbed" memory, with frequent thoughts of suicide but no plans to act on them. He described Martel's speech as rambling, but not indicative of delusions. Martel reported having frequent panic attacks when in crowds or away from home and was frequently housebound as a result.

Describing his daily activities, Martel reported typically waking up at 5:00 a.m. after poor sleep, then spending most of the day in bed watching television. He reported that he never accomplished much, forewent basic hygiene, and rarely left the house. Dr. Newcomb analyzed Martel as withdrawn and avoidant of others and diagnosed him with major depressive disorder, panic disorder with agoraphobia, and alcohol abuse in full sustained remission. He noted that Martel had high stress and assigned him a Global Assessment of Functioning (GAF) score of 40.[7]

Dr. Newcomb next found that Martel's depressive disorder met listing 12.04, [8] opining that his difficulties were "marked" in each category, and that he suffered repeated episodes of decompensation. Dr. Newcomb also found that Martel's panic disorder met Listing 12.06 for Anxiety Related Disorders, again with marked difficulties and repeated episodes of decompensation due to anxiety, recurrent severe panic attacks, fear, terror, and a sense of impending doom occurring on the average of at least once a week. Based on his own examination and review of treatment records indicating large doses of antidepressant medication, Dr. Newcomb opined that it was "more likely than not" that Martel had suffered from debilitating panic and major depressive disorders since April 13, 2006. Tr. at 371. Dr. Newcomb also completed a medical source statement for Martel, finding a host of "marked" limitations, including at least one in each listed category: understanding and memory; sustained concentration and ...

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