United States District Court, D. New Hampshire
Laplante, United States District Judge
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.
Standard of Review
applicable standard of review in this case provides, in
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,
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)).
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
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.
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
December of 2011, Gillen was referred to a psychologist, Dr.
Mary Anne Roy, for a consultative examination. 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”).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.
record includes a Psychiatric Review Technique
(“PRT”) assessment 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
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,
to Dr. Lester's assessment of claimant's RFC, the DDE
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
Tr. 173-74, 185-86.
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,
reconsideration, a different state-agency psychological
consultant, Dr. Leigh Haskell, performed a second PRT
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 ...