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Gillen v. Colvin

United States District Court, D. New Hampshire

February 28, 2017

Kechia Karen Gillen
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2017 DNH 037

          ORDER

          Joseph Laplante, United States District Judge

         Pursuant to 42 U.S.C. § 405(g), Kechia Gillen 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, 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)).

         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.

         Gillen applied for DIB and SSI in August of 2011, claiming that since March 31, 2010, she had been disabled by borderline personality disorder, posttraumatic stress disorder (“PTSD”), depression, anxiety, and attention deficit hyperactivity disorder. The date on which she was last insured for DIB, known in Social Security parlance as her “DLI, ” was September 30, 2011.

         In the Disability Report that Gillen filed in connection with her applications, she indicated that she was laid off from her job as a food-service worker for a culinary company on March 31, 2010, and that her “mental health condition prevented [her] from being able to obtain other work.” Administrative Transcript (hereinafter “Tr.”) 347. She did not mention any physical impairments in her applications.

         In December of 2011, Gillen was referred to a psychologist, Dr. Mary Anne Roy, for a consultative examination.[1] Dr. Roy examined Gillen and wrote a report on the examination she performed. That report, however, includes no formal assessment of Gillen's mental residual functional capacity (“RFC”).[2]Rather, under the heading “Medical Source Statement, ” Dr. Roy described the symptoms of Gillen's depression, PTSD, and possible agoraphobia and concluded: “These aspects of her personality would make it significantly challenging for her to engage in employment at this time.” Tr. 635.

         The record includes a Psychiatric Review Technique (“PRT”) assessment[3] and an assessment of Gillen's mental RFC that were generated during the initial evaluation of her claims. Both assessments were conducted by a state-agency psychological consultant, Dr. Lewis Lester, and both are reported on Disability Determination Explanation (“DDE”) form.

         In his PRT assessment, Dr. Lester determined that Gillen had: (1) moderate restrictions on her activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation, each of extended duration. See Tr. 170-71, 182-83.

         Turning to Dr. Lester's assessment of claimant's RFC, the DDE form explains:

The questions below help determine the individual's ability to perform sustained work activities. However, the actual mental residual functional capacity assessment is recorded in the narrative discussion(s), which describes how the evidence supports each conclusion. This discussion(s) is documented in the explanatory text boxes following each category of limitation (i.e., understand and memory, sustained concentration and persistence, social interaction, and adaptation). Any other assessment information deemed appropriate can be recorded in the MRFC - Additional Explanation text box.

Tr. 172, 184. Dr. Lester made the following assessment of Gillen's mental RFC:

She can understand & remember simple tasks & procedures. . . . Her mood instability, personality disorder & anxiety preclude complex or detailed tasks.
. . . .
She can be reliable & sustain 2-hour blocks at simple tasks at a consistent pace without interruption from psychologically-based symptoms over a normal work day/week. . . .
. . . .
She cannot interact with the public due to her mood instability, personality disorder & anxiety, but she can interact with co-workers & supervisors in a normal work setting. . . .
. . . .
She can adapt to occasional & routine changes & does so in her daily life. She can avoid common hazards, travel & make basic decisions.
. . . .
. . . In spite of established mental impairments & associated mental limitations, claimant retains the capacity to carry out simple tasks on a sustained basis in a routine work setting that does not involve interacting with the public.

Tr. 173-74, 185-86.

         In a letter dated January 18, 2012, the Social Security Administration (“SSA”) disapproved Gillen's claim for benefits. She sought reconsideration. In support of her request for reconsideration, she submitted a form captioned “Disability Report - Appeal” in which she identified, as a change in her physical condition, disc disease in her lower back. She further indicated that the change in her condition occurred on approximately January 9, 2012.

         On reconsideration, a different state-agency psychological consultant, Dr. Leigh Haskell, performed a second PRT assessment.

         Dr. Haskell's findings mirror those of Dr. Lester. Dr. Haskell also provided the following assessment of Gillen's mental RFC:

She can understand and remember simple tasks and procedures. . . . Her mood instability, personality disorder and anxiety preclude complex or detailed tasks.
. . . .
She can sustain and persist at simple tasks during a normal work schedule. . . .
. . . .
She cannot interact with the public, but she can interact with co-workers and supervisors in a normal ...

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