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Hunter v. Colvin

United States District Court, D. New Hampshire

October 13, 2016

Stephen Hunter
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Pursuant to 42 U.S.C. § 405(g), Stephen Hunter moves for an order reversing the Acting Commissioner's decision to deny his 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, in turn, 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, document no. 12, is part of the court's record and will be summarized here, rather than repeated in full.

         In February of 2012, Hunter was hospitalized for three days. His hospitalization resulted from complaints of abdominal pain and a rash that covered his right ankle, hips, wrists, and arms. He was discharged with a diagnosis of leukocystoclastic vasculitis, [1] secondary to a virally mediated gastroenteritis. In May and June of 2012, Hunter received diagnoses of Henoch-Schönlein purpura (“HSP”)[2] and mild crescentic IgA nephropathy with normal renal function.[3] He last worked in May of 2012. Regarding the end of his employment, a medical note generated upon about six months later, upon a hospital admission for psychiatric issues, reports:

After a successful career in business, the patient was diagnosed about 8 months ago with vasculitis and subsequently with IGA nephropathy. As he missed many days of work at his then-employer, Sears Roebuck, where he was the cashier lead person, he was relieved of his job responsibilities.

         Administrative Transcript (hereinafter “Tr.”) 2002.

         Hunter applied for DIB and SSI in June of 2012, claiming to have become disabled on June 2, 2012. In support of his applications, he submitted a Function Report in which he described his daily activities this way:

Wake up, eat breakfast, take morning meds, usually fall asleep, wake up[, ] eat lunch[, ] watch TV, fall asleep, eat dinner, walk dogs[, ] watch TV[, ] take night meds[, ] go to bed.

         Tr. 1845. Hunter also indicated that he: (1) fed and walked two dogs with help from his fiancée; (2) spent 20 minutes a day preparing leftovers or sandwiches; and (3) spent 20 or 30 minutes, “a couple of times each week, ” doing laundry or cleaning. With regard to his general energy level, he reported: (1) “being on medication[, ] I am always exhausted and don't even want to get out of bed on most days, ” Tr. 1844; (2) “I am constantly sleeping, ” Tr. 1845; and (3) “I do much more watching soccer [on television] and less time gardening and fishing since I am usually too tired to go out, ” Tr. 1848. In response to the question “[h]ow well do you handle stress, ” Hunter responded “handle stress well, ” and in response to the question “[h]ow well do you handle changes in routine, ” he responded “handle changes well.” Tr. 1850.

         After Hunter applied for SSI and DIB, a non-examining state agency consultant, Dr. Jonathan Jaffe, reviewed Hunter's medical records to assess his physical residual functional capacity (“RFC”).[4] According to Dr. Jaffe, Hunter's RFC was sufficient to satisfy the exertional demands of medium work, as defined by 20 C.F.R. §§ 404.1567(c) and 416.967(c).

         In September of 2012, the Social Security Administration (“SSA”) referred Hunter to Dr. Mark Ciocca, a psychologist, for a consultative examination. Based upon the results of that examination, Dr. Ciocca completed a Mental Health Evaluation Report on Hunter. Dr. Ciocca indicated a diagnosis of bipolar disorder. With respect to Hunter's current level of functioning, Dr. Ciocca offered several opinions, including these:

The claimant is unable to maintain attention and concentration in order to persist at, and complete tasks.
Mr. Hunter is currently unable to tolerate stressors common to the work situation, and to maintain consistent attendance.

         Tr. 1984-85. Finally, Dr. Ciocca gave the following prognosis: “Given the stressor that Mr. Hunter's illness creates, it seems that he will have mood difficulties for the foreseeable future. Therefore, his prognosis is only fair.” Tr. 1985.

         After Dr. Ciocca performed his consultative examination, a non-examining state agency psychological consultant, Dr. Therese Harris, reviewed Hunter's medical records, including Dr. Ciocca's evaluation, and assessed his mental RFC. According to Dr. Harris, Hunter had some understanding and memory limitations and some sustained concentration and persistence limitations, but no limitations in the areas of social interaction and adaptation. With respect to understanding and memory, Dr. Harris opined that Hunter had “[s]ome forgetfulness/ memory limitations, but [was] able to recall and manage simple tasks.” Tr. 1696, 1709. With respect to sustained concentration and persistence limitations, Dr. Harris opined that Hunter had “[s]ome difficulties with focus and concentration, but [was] able to maintain focus, pace, and persistence for simple tasks for 2-hour periods within a normal 40-hour work schedule.” Tr. 1696, 1709.

         Then, after noting that Dr. Ciocca's opinion included more restrictive limitations than those in her opinion, Dr. Harris explained:

[Dr. Ciocca's] statement of limitations is not consistent with the [claimant's] presentation at [Dr. Ciocca's examination] and is difficult to explain unless it reflects limitations due to BOTH the [claimant's] somatic issues and [psychological] issues. These statements are therefore given limited weight. [Dr. Ciocca] notes [claimant] is unable to tolerate stress, but the [claimant] himself states on his Functional Report that he manages stress well. Fully credible.

Tr. 1697 (emphasis added).

         In November of 2012, after Drs. Ciocca and Harris assessed his physical and mental RFCs, Hunter was voluntarily admitted to the inpatient psychiatric unit at Concord Hospital for approximately 10 days because he was having suicidal thoughts. At Concord Hospital, he was diagnosed with major depressive disorder. On admission, he had a global assessment of functioning (“GAF”)[5] score of 32, [6] and at discharge, he had a GAF of 56.[7] In December of 2012, Hunter spent five days in the Behavioral Health Unit of Southern New Hampshire Medical Center (“SNHMC”) as a result of compelling homicidal ideation. At SNHMC, he was diagnosed with bipolar disorder, recurrent, mixed. On admission, he had a GAF of 35, and at discharge, he had a GAF of 50.[8]

         After he was released from Concord Hospital, Hunter received five sessions of mental health counseling, over the course of approximately two months, from Sheena Bice. Upon her initial examination, Bice gave Hunter preliminary diagnoses of mood disorder and impulse disorder, and gave rule-out diagnoses of bipolar disorder and intermittent explosive disorder.[9] She also assessed Hunter as having a GAF of 50.

         After the SSA denied Hunter's application for benefits, he received a hearing before an Administrative Law Judge (“ALJ”). Thereafter, the ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: Henoch-Schonlein purpura/vasculitis, IgA nephropathy (glomerulonephritis), and bipolar disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c), meaning he can lift and carry 50 lbs. occasionally and 25 lbs. frequently, stand or walk for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour workday. The claimant has the ability to focus, ...

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