United States District Court, D. New Hampshire
Lance Tillinghast, Esq. T. David Plourde, Esq.
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
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.
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. 14, is part of the court's
record and will be summarized here, rather than repeated in
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.
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 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.” Administrative Transcript (hereinafter
regard to Montrose's physical residual functional
capacity (“RFC”),  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
March of 2014, Dr. Stefanie Griffin conducted a consultative
psychological examination of Montrose and prepared a Mental
Health Evaluation Report based upon her
examination. 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] . . . .
Dr. Griffin wrote her report, Dr. Nicholas Kalfas, a
non-examining consulting psychologist, conducted a
psychiatric review technique
(“PRT”) 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
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.
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
. . . .
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), ...