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Avery v. Acting Commissioner, Social Security Administration

United States District Court, D. New Hampshire

May 24, 2018

Amy Lynne Avery
Acting Commissioner, Social Security Administration


          Joseph A. DiClerico, Jr. United States District Judge

         Amy Lynne Avery seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the Acting Commissioner's decision, denying her application for disability benefits under Title II of the Social Security Act. Avery moves to reverse, contending that the Administrative Law Judge (“ALJ”) erred in evaluating her testimony, which resulted in an erroneous finding that she was not disabled. 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 scintilla of evidence” but less than a preponderance of the evidence. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal quotation marks omitted). When the record could support differing conclusions, the court must uphold the ALJ's findings “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal quotation marks omitted); accord Purdy, 887 F.3d at 13.

         Disability for purposes of disability insurance benefits means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(c)(1)(A). In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis. 20 C.F.R. § 404.1520; Purdy, 887 F.3d at 10. The claimant bears the burden through the first four steps of proving that her impairments preclude her from working. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth step, the Acting Commissioner has the burden of showing “evidence of specific jobs in the national economy that the applicant can still perform.” Purdy, 887 F.3d at 10.


         Avery alleged that she became disabled on April 1, 2012, when she was thirty-nine years old. She contends that her disability is due to high blood pressure with complications, migraine headaches, anxiety, panic attacks, and a back injury. A hearing before an ALJ was held on her application.

         The medical evidence begins in September of 2012, when Avery went to the hospital because of pain and headaches. She was pregnant with her first child at that time but had not received any prenatal care. She was transferred to another hospital, put on medication, and her son was delivered prematurely because of Avery's worsening hypertension. After the delivery, Avery did well with no complications.

         In July of 2013, she was seen at Maine Medical Center to coordinate her care because she was pregnant with her second child and had chronic hypertension. Avery reported severe migraines that were treated with Vicodin, although providers were concerned about neonatal withdrawal. Avery's hypertension was controlled with medication. She required treatment again in August of 2013 for migraine pain and vomiting. In September, she again had episodes of high blood pressure and headache, and her second child was delivered early because of Avery's preeclampsia. She left the hospital four days later.

         During the fall, Avery was treated for migraines. Providers tried different medications for her migraine pain. In November, she began a new treatment for migraines that resulted in improvement of frequency and severity of headaches. Avery had difficulty controlling her blood pressure, so that providers tried different medications. By July of 2014, Avery's symptoms had improved, and her blood pressure was controlled.

         In October of 2015, Avery reported anxiety that was causing her blood pressure to rise. The provider recommended counseling and increased Avery's blood pressure medication. Avery reported improvement in November.

         Dr. Peter Loeser did a consultative examination of Avery in December of 2015 and completed a form for physical functional capacity. Dr. Loeser found that Avery's blood pressure was high and he recommended that she follow up with her providers. All other parts of the examination showed normal results, with no neurological deficits, normal strength, normal sensation, and normal ability to sit, stand, and do postural activities. In his assessment, Dr. Loeser found no physical limitations.

         At the hearing on January 7, 2016, Avery testified that she was married and had two young disabled sons. She said that neither she nor her husband was working and that the family lived with her husband's mother who helped to take care of them. Avery does not drive.

         When asked to explain why she could not work, Avery testified that her migraine headaches caused symptoms that include nausea and auras. She said that her hands and feet swelled so that she cannot walk, that missing medications can cause disastrous symptoms, that she cannot do heavy lifting or physical activity, that she cannot do long-term screen work, and that she cannot grasp or hold things. Avery testified that working in the past made her blood pressure get too high and that physical activity made her blood pressure ...

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