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Kessler v. Berryhill

United States District Court, D. New Hampshire

April 25, 2017

Roberta Raye Kessler
Nancy A. Berryhill, Acting Commissioner, Social Security Administration Opinion No. 2017 DNH 082


          Joseph DiClerico, Jr. United States District Judge

         Roberta Raye Kessler seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of Social Security, denying her application for disability insurance benefits under Title II, 42 U.S.C. § 423. Kessler contends that the Administrative Law Judge (“ALJ”) erred in failing to find that she had severe medically determinable mental impairments before her date last insured. The Acting Commissioner moves to affirm.

         Standard of Review In reviewing the final decision of the Acting Commissioner in a social security case, the court “is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Castillo Condo. Ass'n v. U.S. Dep't of Housing & Urban Dev., 821 F.3d 92, 97 (1st Cir. 2016) (internal quotation marks omitted). “[S]ubstantial evidence does not mean either uncontradicted evidence or overwhelming evidence” but instead can be satisfied “even if the record arguably could justify a different conclusion.” Id. (internal quotation marks omitted).


         Kessler applied for social security disability benefits in November of 2013, claiming an onset of disability in December of 2004. Kessler claimed disability due to depression, anxiety, and an eating disorder. Her date last insured was December 31, 2009.

         Before her administrative hearing, Kessler amended the onset date of disability to December 1, 2009, when she was fifty-five years old. Kessler completed four years of college and had worked as a general officer helper. She lost her job in 2004, which exacerbated her mental health symptoms.

         Kessler's medical records show that she demonstrated an anxious mood or affect in April 2005. She was diagnosed with depression in October of 2004. Her primary care physician prescribed medication to treat depression.

         In July of 2007, Dr. Cambrone did an initial psychiatric examination. Kessler reported six years of depression, exacerbated by the loss of her job and the death of friends. On examination, Dr. Cambrone found that Kessler appeared older than her age, her eye contact was poor, she showed psychomotor retardation, and her mood was depressed. Dr. Cambrone also found that Kessler's hygiene and grooming were good, her interaction was good, and her insight and judgment were good. Dr. Cambrone diagnosed major depressive disorder, recurrent.

         In September of 2007, Dr. Cambrone made the same diagnosis, increased Kessler's dose of one medication, and added another medication. The next month Dr. Cambrone decreased some medications because of too much sedation. At the following monthly appointments, Dr. Cambrone changed medications and doses to address Kessler's continuing depression and anxiety.

         In December of 2007, Dr. Cambrone noted that Kessler's depression had worsened, but she refused psychotherapy treatment. Beginning in December of 2007, Kessler's husband accompanied her to appointments with Dr. Cambrone. Dr. Cambrone continued to diagnose major depressive disorder and increased or changed Kessler's medications as needed. In March of 2008, Kessler reported no improvement and said that she wanted to stop taking medications. Dr. Cambrone lowered her dose and told her she could discontinue medication in two weeks.

         Kessler switched to treatment with psychiatrist Dr. Albert Kaplan in 2009. When asked, Dr. Kaplan was unable to find Kessler's records. He wrote a letter in January of 2014, in which he stated that he had a “vivid memory” of Kessler as a “frightened, anxious depressed woman” and that he had treated her for about a two year period, from 2009 to 2011, with weekly psychotherapy and medication. He also said that Kessler made only slight, if any, progress. Dr. Kaplan remembered that Kessler had severe anorexia, which required hospitalization, and “situational issues” when her husband was laid off from work, her mother had health issues, and she had difficulties with her adult children. Dr. Kaplan said that Kessler could not work and that her husband had to be with her during most, if not all, of Kessler's treatment sessions.

         Kessler also provided medical records for treatment after her date last insured. Her treatment records with her primary care physician, Dr. Daniel Goldman, confirm that Kessler was receiving psychiatric treatment with Dr. Kaplan. Dr. Goldman also noted Kessler's depression and the effects of depression.

         On September 9, 2011, Kessler was evaluated by Jennifer Bush and Dr. Layden at the University of Pennsylvania Center for Cognitive Therapy. On examination, they noted that Kessler was disheveled, her affect was flat, her mood was depressed, she had suicidal ideation, and her judgment was impaired. They diagnosed major depressive disorder, severe; generalized anxiety disorder, and avoidant personality disorder. Her GAF score was assessed at 33 with a possible high of 38 over the past year.[1]

         Kessler was also evaluated by Dr. Ryan at the Center for Cognitive Therapy on September 27, 2011, who asked that Kessler's husband join them for the session. Kessler was severely underweight, disheveled, and wearing more clothing than necessary for the weather. On examination, Kessler had retarded motor activity, depressed mood, dysphoric affect, slow speech, blocked thought process, somnolent orientation, and slow or sluggish concentration. Her insight and judgment were poor. Dr. Ryan diagnosed major depressive disorder, severe, and a possible dependent personality disorder. Dr. Ryan also discussed Kessler's condition at length with Dr. Kaplan who was then Kessler's treating psychiatrist.

         In April of 2012, Kessler was admitted to an eating disorder facility because of her weight loss, where she was treated for a month. Kessler was diagnosed with anorexia nervosa, secondary to depression and severe depression. Her GAF score was assessed to be between 25 and 30.[2] When she left the facility, ...

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