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Montrose v. Berryhill

United States District Court, D. New Hampshire

December 14, 2017

Debra Montrose
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          D. Lance Tillinghast, Esq. T. David Plourde, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

         Pursuant to 42 U.S.C. § 405(g), Debra Montrose 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”), should be 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. 14, is part of the court's record and will be summarized here, rather than repeated in full.

         On October 30, 2013, Montrose had a stroke and was hospitalized for approximately five days. When she was taken to the hospital, she complained of difficulty with speech, and was diagnosed with a speech disturbance.

         In March of 2014, Montrose saw Dr. Ruth James, complaining of swelling in her right ankle. That complaint did not result in a diagnosis, but Dr. James instructed Montrose to elevate her ankle, wear compression stockings, and wear a brace if possible. In August of 2014, Montrose saw Dr. Eric Samuel, complaining of a flare-up of swelling in her right leg. He gave a diagnosis of peripheral edema[1] and prescribed compression hose. In July of 2015, Dr. James or Dr. Samuel ordered an x-ray of Montrose's right ankle, based upon her complaints of swelling and pain. That x-ray resulted in these impressions: “1. No acute fracture or dislocation. 2. Diffuse soft tissue swelling about the ankle. 3. Achilles enthesopathy.”[2] Administrative Transcript (hereinafter “Tr.”) 477.

         With regard to Montrose's physical residual functional capacity (“RFC”), [3] the record includes one opinion, rendered by Dr. Burton Nault, a state agency consultant. According to Dr. Nault, who rendered his opinion in May of 2014, Montrose could occasionally lift 10 pounds, frequently lift less than 10 pounds, stand and/or walk (with normal breaks) for a total of two hours, sit (with normal breaks) for a total of about six hours in an eight-hour work day, and push and/or pull the same amount she could lift and/or carry. He further opined that Montrose could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but could never climb ladders, ropes, or scaffolds. He identified no manipulative, visual, communicative, or environmental limitations.

         In March of 2014, Dr. Stefanie Griffin conducted a consultative psychological examination of Montrose and prepared a Mental Health Evaluation Report based upon her examination.[4] Dr. Griffin provided a diagnosis of “[a]djustment disorder with depressed mood.” Tr. 448. She also gave the following opinions on Montrose's then-current level of functioning:

Activities of Daily Living: . . . Ms. Montrose appears independent in completing daily activities. . . .
Social Functioning: . . . Overall, she appears capable of appropriate social functions at this time.
Understanding and Remembering Instructions: . . . Ms. Montrose appears capable of understanding and remembering instructions. . . .
Concentration and Task Completion: . . . M[s]. Montrose appears generally capable of attending to and completing tasks. . . .
Reaction to Stress, Adaptation to Work or Work-like Situations: . . . From a cognitive and psychological standpoint, Ms. Montrose appears generally capable of adhering to a work schedule, interacting appropriately with supervisors and co-[workers] . . . .

Tr. 447-48.

         After Dr. Griffin wrote her report, Dr. Nicholas Kalfas, a non-examining consulting psychologist, conducted a psychiatric review technique (“PRT”)[5] assessment based upon Montrose's medical records. After noting a diagnosis of affective disorders, Dr. Kalfas opined that Montrose had no restrictions on her activities of daily living, no difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence, or pace, and had no repeated episodes of decompensation, each of extended duration.

         In June of 2014, Montrose's therapist referred her to Dr. Paul Lindstrom for a psychiatric evaluation. He gave her a diagnosis of “major depressive disorder, recurrent, moderate.” Tr. 453. Under the heading “Impression, ” Dr. Lindstrom wrote:

The woman has a post stroke depression, partly due to her changed life circumstance and having to live in a shelter now, and partly due to the stroke itself. . . . I don't think that she has capacity to work at present as a result of the stroke she had, which has affected her physical capacity and diminished her capacity for expressive language.

Id.

         After Montrose's claims were denied at the initial level, she received a hearing before an ALJ. The ALJ, in turn, issued a decision that includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: central nervous system (“CNS”) (20 CFR 404.1520(c) and 416.920(c)).[6]
. . . .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), ...

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