United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge
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.
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).
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.
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.
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.
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.
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.
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.
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
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
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
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.
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. When she left the facility,