United States District Court, D. New Hampshire
Landya Mccafferty United States District Judge
Pursuant to 42 U.S.C. § 405(g), Shilo Walter moves to reverse the Acting Commissioner’s decision to deny her application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, the decision of the Acting Commissioner, as announced by the Administrative Law Judge (“ALJ”) is affirmed.
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) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court “must uphold a denial of social security . . . 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 statutory requirement that the Acting Commissioner’s findings of fact be supported by substantial evidence, “[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts.” Alexandrou v. Sullivan, 764 F.Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Currier v. Sec’y
of HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the [Acting Commissioner] to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the [Acting Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations omitted). Moreover, 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.” Tsarelka v. Sec’y of HHS,
842 F.2d 529, 535 (1st Cir. 1988) (per curiam). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must “review the evidence in the record as a whole.” Irlanda
Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
The parties have submitted a Joint Statement of Material Facts. That statement, document no. 13, is part of the court’s record and will be summarized here, rather than repeated in full.
Walter has been diagnosed with both physical and mental impairments including migraine headaches, carpal tunnel syndrome, degenerative disc disease, chronic obstructive pulmonary disease, depressive disorder, and posttraumatic stress disorder (“PTSD”) with social anxiety, panic attacks, and agoraphobia. In this section, the court focusses on three aspects of the record that are related to Walter’s claims of error.
A. Walter’s Migraines
On August 25, 2011, Walter went to the emergency room complaining of a migraine headache that had lasted for three and one half days. She was diagnosed with a “[m]igrainous-type headache, improved.” Administrative Transcript (hereinafter “Tr.”) 759, 1101. She was treated with intravenous (“IV”) fluids and medication, and was discharged with Percocet. Four days later, she saw her primary care provider, nurse practitioner Christopher Laurent, complaining of a persistent migraine. Again, she was given IV fluids and medication.
The day after Laurent treated Walter for her migraine, she went to the emergency room and was diagnosed with respiratory failure. Thereafter, she was intubated, transferred to another hospital, placed in a medically induced coma for 11 days, and diagnosed with Legionnaire’s Disease. Medical records generated during Walter’s hospital stay refer to migraines in her medical history, but do not document any further complaints of migraines or treatment for migraines.
After Walter was discharged from the hospital, she saw Laurent at least 18 times between September 16, 2011, and May 22, 2012. At none of those visits did she complain of headaches, and 17 of the 18 progress notes documenting those visits bear the notation “negative for headache.” On June 13, 2012, Walter complained to Laurent of daily headaches she called dull, mild, and “NOT the worst headache[s] [of her] life.” Tr.865. She also reported that her headaches were relieved by Ibuprofen, which Laurent told her to continue taking. Then, from June 13, 2012, through July of 2013, Walter saw Laurent another 19 times, and each of the progress notes from those visits bears the notation “negative for headache.”
At her hearing before the ALJ, on August 16, 2013, Walter offered the following testimony about her migraines:
A I’ll get headaches, and I have to lay down from like, anywhere from three to five hours, and take Motrin, and have no light, no sounds.
Q And typically in the course of a month, how many of those are you going to have?
A Probably 10 in a month.
Q Okay. So typically at least a couple a week?
Q Do you ever get through a month without having a migraine?
Q Do you ever get through a week without having a migraine?
Q Okay. Have they found any medicine that made the migraines go away?
B. Opinions on Walter’s Physical Impairments
In April of 2012, Dr. Burton Nault, a non-examining state-agency consultant, gave an assessment of Walter’s physical residual functional capacity (“RFC”). He opined that Walter had various exertional, postural, and environmental limitations, but also opined that she had no manipulative limitations, i.e., no limitations in her abilities for reaching, handling, fingering, and feeling. In July of 2013, Dr. John Ford completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical). In it, he opined that Walter had an unlimited capacity to perform all four manipulative activities.
C. Opinions on Walter’s Mental Impairments After Walter applied for DIB and SSI, the Social Security Administration (“SSA”) determined that “[t]he evidence as a whole, both medical and non-medical, [was] not sufficient to support a decision on [Walter’s] claim.” Tr. 57, 68.
Consequently, the SSA sent Walter to Dr. Jeffrey Kay for a consultative psychological examination. In a Mental Health Evaluation Report documenting his examination, Dr. Kay diagnosed Walter with major depressive disorder and chronic PTSD. He did not diagnose a personality disorder.
With respect to Walter’s then-current level of functioning, Dr. Kay gave the following assessments and opinions:
Activities of Daily Living: She lacks energy and motivation to carry out house cleaning and cooking responsibilities consistently and independently. She relies heavily on her partner and her parents to remind her of chores and appointments. She is able to care for her hygiene. She rarely ventures out of the house and has not regained her driver’s license. She is unable to manage a checkbook.
Social Functioning: Isolating from everyone other than family and interacting with family rarely.
Irritability is not a major problem but quite anxious socially and has very little motivation.
Understanding and Remembering Instructions: MMSE [mini mental state examination] suggests that she has no significant difficulty with simple instructions but the anxiety and poor memory she reports since the coma are likely to interfere with complex instructions.
Concentration and Task Completion. She was able to do serial 7’s but made one miscalculation. She lacks the motivation to even start housework and cooking, much less to complete it. She needs frequent reminders and prompts. She has to reread or read out loud. She is not able to independently and consistently complete tasks.
Reaction to Stress, Adaptation to Work or Work-like Situations: Probable sleep disorder, social anxiety and depression are likely to interfere with attendance and punctuality. If stressed she is likely to cry and leave work. Productivity will be unreliable due to poor concentration and fatigue and low motivation as well as pain and [shortness of breath]. She is able to accept respectful and ...