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Newman v. Berryhill

United States District Court, D. New Hampshire

May 15, 2018

David A. Newman
Nancy A. Berryhill, Acting Commissioner of Social Security


          Landya McCafferty, United States District Judge.

         David A. Newman seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of the Social Security Administration, denying his application for disability insurance benefits. Newman moves to reverse the Acting Commissioner's decision, contending that the decision of the Administrative Law Judge ("ALJ")-specifically, the residual functional capacity assessment-is not supported by substantial evidence. The Acting Commissioner moves to affirm. For the following reasons, the Acting Commissioner's decision is affirmed.


         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. 42 U.S.C. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). "Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Astralis Condo. Ass'n v. Sec'y Dep't of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).

         In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). The claimant "has the burden of production and proof at the first four steps of the process." Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The first three steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether he has a severe impairment; and (3) determining whether the impairment meets or equals a listed impairment. 20 C.F.R. § 404.1520(a) (4) (i)- (iii) .

         At the fourth step of the sequential analysis, the ALJ assesses the claimant's residual functional capacity ("RFC"), which is a determination of the most a person can do in a work setting despite his limitations caused by impairments, Id. § 404.1545(a)(1), and his past relevant work, id. § 404.1520(a)(4)(iv)). If the claimant can perform his past relevant work, the ALJ will find that the claimant is not disabled. See Id. If the claimant cannot perform his past relevant work, the ALJ proceeds to Step Five, in which the ALJ has the burden of showing that jobs exist in the economy which the claimant can do in light of the RFC assessment. See Id. § 404.1520 (a) (4) (v) .


         On August 17, 2016, Newman applied for disability insurance benefits, claiming a disability that began on February 21, 2015.[2]He was 54 years old at the time of his application, had a high school education, and had previously worked as a photocopy machine operator and security officer. Newman alleged that he was disabled as a result of right upper extremity dysfunction, chronic back pain following fusion surgery, right lower extremity arthritis, depression, post-traumatic stress disorder ("PTSD"), panic disorder, anxiety disorder, and bilateral upper extremity tremors. Newman's application was initially denied, and he sought review before an ALJ.

         I. Hearing Evidence[3]

         On May 16, 2017, a hearing before an ALJ was held. Newman was represented by an attorney and testified at the hearing. Jack Bopp, a vocational expert, appeared and testified by phone.

         Regarding functional limitations, there is evidence in the record to support the position that Newman's anxiety and depression impeded his abilities to concentrate, interact with others socially, and be out in public. For example, in June 2016, Newman reported to Tara Fraser, Physician's Assistant and Newman's primary care provider, that he was anxious in crowds and afraid to leave his house. Newman reported that, as a result of his anxiety, crowds overwhelmed him, and he limited the extent to which he went out in public. At the hearing, Newman also testified that on one occasion, when he went to a concert and forgot to take his anxiety medication, he had a panic attack as he entered the venue.

         This view of Newman's anxiety as functionally debilitating is supported by the consultative psychological examination performed by Robert Prescott, Ph. D, in November 2016. Dr. Prescott examined Newman, spoke with him about his mental health, and reviewed some medical records. Dr. Prescott concluded that Newman could not be expected to maintain concentration for extended periods, manage typical levels of stress "found in settings outside the home, " or "interact effectively . . . with others on the job." Admin. Rec. at 480.

         On the other hand, there is evidence in the record showing that Newman could effectively control his anxiety through medication. Newman reported as much to Fraser, stating that he could attend concerts, visit museums, and do "more day to day activities" with the help of his anxiety medication. Admin. Rec. at 395. At the hearing, Newman testified that he took the medication before leaving his house, going to the grocery store, or going to Walmart. When he attended a concert, however, he would need to double the dosage.

         State agency psychologist Patricia Salt, Ph. D., provided an assessment consistent with this latter set of evidence. She reviewed Dr. Prescott's opinion and the records from Newman's primary care provider. Dr. Salt concluded that Newman could maintain attention and concentrate for extended periods of time, could "get along adequately with those he interacts with, " and could appropriately respond to criticism, though she also noted that Newman may be ...

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