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Payne v. Colvin

United States District Court, D. New Hampshire

May 20, 2016

Donna Payne
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.


          ANDREA K. JOHNSTONE, Magistrate Judge.

         Pursuant to 42 U.S.C. § 405(g), Donna Payne moves to reverse the Acting Commissioner's decision to deny her applications 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 moves for an order affirming her decision. For the reasons that follow, this matter should be remanded to the Acting Commissioner.

         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)).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement, doc. no. 15, is part of the court's record and will be summarized here, rather than repeated in full.

         Before she stopped working in August of 2008, Payne held jobs as a customer service clerk and as a secretary. In her applications for both DIB and SSI, she claimed to have become disabled on June 10, 2013.

         A. Relevant Treatment History

         Payne has been diagnosed with and treated for a variety of physical and mental impairments including, but not limited to degenerative disc disease, left hip trochanteric bursitis, right wrist pain, depression, and anxiety. Payne's primary claims of error involve the consideration of her mental impairments.

         In June of 2013, Payne saw her primary care provider, Dr. Deborah Ganem, for a physical examination. She also followed up with Dr. Ganem on multiple issues, including acute anxiety and depression. Over the next nine months, Payne saw Dr. Ganem about 10 more times for treatment of her depression and anxiety. During that time, Payne's condition were exacerbated by the deaths of her ex-husband and mother. Dr. Ganem prescribed various medications for Payne's depression and anxiety, [1] and she recommended counseling, which Payne began in December of 2013, with Linda Stakun, of the Greater Nashua Mental Health Center ("GNMHC"). In March of 2014, Dr. Ganem advised Payne "to ask to see a prescriber at [GNMHC] since she [was] not getting better on [the] max meds that [Dr. Ganem felt] comfortable prescribing." Administrative Transcript (hereinafter "Tr.") 895.

         In the fall of 2014, Dr. Ganem referred Payne to the Partial Hospital Program ("PHP") at Southern New Hampshire Medical Center. PHP, which is offered on an out-patient basis, "is an intensive short-term group therapy program... for individuals with psychiatric and co-occurring disorders." Tr. 913. Dr. Ganem referred Payne to PHP "for worsening of [her] depressive symptoms and anxiety." Tr. 946. Payne spent two days in PHP in October of 2014, and was discharged with instructions to "followup for psychiatric medications with Margaret Dorson, APRN, at Harbor Care Clinic." Tr. 945. In November of 2014, Payne saw Dorson who, in turn, referred her to Robert Dumond for counseling.

         B. Opinion Evidence

         In December of 2013, Payne saw Dr. M. Lorene Sipes, a psychologist, who performed a consultative examination and then produced a Mental Health Evaluation Report that documented the results of her examination. Dr. Sipes saw Payne for 20 minutes. She administered a mental status examination, [2] but she performed no psychological testing. Dr. Sipes diagnosed Payne with major depressive disorder and panic disorder with agoraphobia. Based upon her examination, Dr. Sipes opined that Payne was able to: (1) "adequately perform activities of daily living, " Tr. 659; (2) "manage the social demands of most work situations, " id.; (3) "concentrate adequately and complete common tasks of most work situations, " Tr. 660; and (4) "effectively manage common stressors of most work situations, " id. The form that Dr. Sipes completed also asked her to "describe the claimant's ability to... understand and remember very short and simple instructions, and to understand and remember detailed instructions, etc." Id . Dr. Sipes responded:

Ms. Payne completed 12 years of formal education. Upon examination, she was able to understand the minimal requirements of the interview. She was able to understand written and spoken language including metaphors. She was able to follow written and spoken instructions. Her short-term memory was fair to good and her long-term memory was good. Thus, it is my clinical opinion that she is able to understand and remember simple oral and written instructions.

         Id. Despite being asked about Payne's ability to understand and remember detailed instructions, Dr. Sipes did not opine that Payne had that ability.

         Also in December 2013, Dr. Edward Martin, a state agency psychologist who did not examine Payne, reviewed her medical records and completed a Psychiatric Review Technique ("PRT") assessment on her. See 29 C.F.R. §§ 404.1520a & 416.920a (describing the psychiatric review technique). He opined that Payne had: (1) no restrictions on her activities of daily living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence, or pace; and (4) had had no episodes of decompensation that had lasted for an extended duration. After determining that Payne's statements about the symptoms of her depression and anxiety were not credible, and noting that he gave weight to the opinions of Dr. Sipes, Dr. Martin continued:

Dr. Sipes opines that Ms Payne, despite any impairments, is able to adequately and independently care for herself, to interact effectively with others, to maintain concentration/persistence/pace, and to otherwise tolerate the stresses common to work or work-like situations. While memory may at times be somewhat problematic for her, this difficulty does not rise above a level characterized as "mild." Thus, Impairment Not Severe is an appropriate conclusion.

         Tr. 108. Dr. Martin conducted his PRT assessment before, among other things: (1) Dr. Ganem recommended that Payne see another prescriber, because she was not getting better under Dr. Ganem's medication regimen; (2) Dr. Ganem referred Payne to PHP; (3) Payne received counseling from Stakun and Dumond; and (4) Dr. Ganem, Stakun, and Dumond each completed a Mental Impairment Questionnaire ("Questionnaire") on Payne.

         Dr. Ganem completed her Questionnaire in October 2014, around the time she referred Payne to PHP and nearly a year after Dr. Martin performed his PRT assessment. She noted diagnoses of acute depression and anxiety with agoraphobia, and reported that for seven months starting in June of 2013, she saw Payne every two to four weeks for depression and anxiety. Dr. Ganem then checked boxes indicating the presence of 17 different signs and symptoms of Payne's mental impairments. Under the heading "[o]ther signs or symptoms, " Dr. Ganem reported:

Feeling tired/little energy. Tremors when very anxious. At the same time, psychomotor retardation. Not wanting to get ...

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