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Gutierrez v. Colvin

United States District Court, D. New Hampshire

October 13, 2016

Juan Antonio Gutierrez
Carolyn W. Colvin, Acting Commissioner, Social Security Administration


          Andrea K. Johnstone United States Magistrate Judge.

         Pursuant to 42 U.S.C. § 405(g), Juan Gutierrez moves to reverse 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 for further proceedings.

         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. 15, is part of the court's record and will be summarized here, rather than repeated in full.

         Gutierrez has been diagnosed with various physical and mental impairments. He applied for both DIB and SSI in June of 2012.

         In July of 2012, Gutierrez's physical residual functional capacity (“RFC”)[1] was assessed by Karen Cammack, a single decisionmaker, [2] who reviewed his medical records, including the results of a consultative examination commissioned by the Social Security Administration (“SSA”).[3] Cammack's RFC assessment was later affirmed by Dr. Burton Nault, a state-agency medical consultant who did not examine Gutierrez. Based upon her review of Gutierrez's medical records, Cammack identified no postural, manipulative, visual, communicative, or environmental limitations on his ability to engage in work-related activities. With respect to exertional limitations, Cammack determined that Gutierrez could lift and/or carry 10 pounds frequently and 20 pounds occasionally, and could both stand and/or walk, and sit, for about six hours in an eight-hour workday.

         In July of 2012, the SSA referred Gutierrez to Tiffany Schiffner, a psychologist, for a consultative examination. Based upon her examination, Dr. Schiffner prepared a Disability Evaluation on Gutierrez. In her report, Dr. Schiffner gave Gutierrez the following diagnoses:

Adjustment Disorder with Depressed and Anxious Mood (Based on the records, self-report and clinical observations).
Rule Out Cocaine Abuse (Based on self-report and clinical observations).[4]
Polysubstance Abuse by History (Cannabis, Alcohol and Amphetamine) (Based on self-report and clinical observations).

         Administrative Transcript (hereinafter “Tr.”) 368. With regard to Gutierrez's functional ability, Dr. Schiffner had this to say: “Social functioning is moderately impaired based on his report of his isolating behaviors. Functional ability is moderately impaired based on his mental health symptomatology.” Id.

         In July of 2012, Gutierrez's mental RFC was assessed by Dr. Beth Klein, a non-examining psychologist who reviewed his medical records. Dr. Klein indicated that Gutierrez had limitations in three of the four areas she reported on: (1) understanding and memory; (2) sustained concentration and persistence; and (3) social interaction. She reported no limitations in the area of adaptation. Dr. Klein summarized her opinions on Gutierrez's mental RFC this way:

[Gutierrez] should be able to remember work-like procedures, understand and remember very short & simple instructions, but may have up to mod[erate] diff[iculties] [with] detailed instr[uctions].
[Gutierrez] should be able to carry out very short & simple instr[uctions], perform activities within a schedule, sustain an ordinary routine [without] special supervision, work [with] others without being distracted, and make simple work-related decisions. Will likely have up to [mod]erate diff[iculties] carrying out detained instr[uctions] and maintaining att[ention]/conc[entration] for ext[ended] [periods]. Overall, [claimant] should be able to complete a normal workweek with no more than mild interference from mental [symptoms].
[Gutierrez] should be able to interact approp[riately] with the general public, ask simple questions, maintain socially appropriate behavior with reasonable [hygiene], and approp[irately] accept f[eed]back from supervisors. Will likely have up ...

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