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McCarthy v. Berryhill

United States District Court, D. New Hampshire

October 4, 2018

Gail Margaret McCarthy
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         Gail Margaret McCarthy seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the Acting Commissioner's decision denying her application for disability insurance benefits. In support, McCarthy contends that the Administrative Law Judge (“ALJ”) erroneously found that she did not have medically determinable mental impairments, erred in failing to find limitations related to diverticulitis, and made a flawed credibility finding. 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). Substantial evidence is “more than a scintilla of evidence” but less than a preponderance. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018). The court must affirm the ALJ's findings, even if the record could support a different conclusion, as long as “a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the ALJ's] 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.

         Background

         McCarthy applied for social security benefits in October of 2015, alleging that she became disabled on February 28, 2014, when she was sixty-one years old. She alleged disability because of diabetes, neuropathy, hypertension, diverticulitis, an open wound in her abdomen, arthritis, and a bulging disc in her back.[1]

         Before her alleged disability, McCarthy had worked from 1970 through 2014, except for one year. She previously worked as an accounting clerk and a payroll clerk.

         Her medical history shows abdominal surgeries beginning with diverticulitis in 2010 that resulted in a persistent open wound. McCarthy was also treated for depression by her primary care physician, Dr. Melissa Duxbury.

         A state agency physician, Dr. Abraham Colb, reviewed McCarthy's records in May of 2016. Dr. Colb determined that her gastrointestinal disorders, including the wound and diverticulitis, were not severe. He found that she could do work at the light exertional level and occasionally do postural activities.

         Dr. Duxbury completed a Mental Health Questionnaire on January 31, 2017, that was based on a Patient Health Questionnaire, PHQ-9, and a Generalized Anxiety Disorder 7 Item Assessment, GAD-7, which were completed in August of 2016. During her examination in August of 2016 when the mental health tests were done, Dr. Duxbury noted that McCarthy was “alert and cooperative; normal mood and affect; normal attention span and concentration.” Dr. Duxbury wrote with respect to McCarthy's depression that she was “doing well” and that her depression had “been stable for a No. of years on the medication.” Six months later, Dr. Duxbury wrote on the Mental Health Questionnaire that McCarthy had moderate to marked deficiencies in concentration and persistence or pace that would result in failure to complete tasks in a timely manner and marked episodes of deterioration or decompensation in work settings that would cause McCarthy to withdraw from the situation.

         A hearing was held before an ALJ in April of 2017. McCarthy was represented by an attorney at the hearing. She testified that the complications following her diverticulitis surgery that resulted in a persistent open wound caused her to stop working. She also testified in response to her attorney's question about “difficulties on the mental side” that she had “a lot of mental issues with the fact that I still have an open wound in my abdomen that still secretes stuff.” Her testimony, however, focused on physical pain from the wound and her back. She also testified that she was taking Cymbalta for depression.

         The ALJ found that McCarthy had the residual functional capacity to do work at the light exertional level, with a limitation of standing, walking, and sitting for no more than six hours, and a limitation to occasional postural activities. Based on the vocational expert's testimony, the ALJ found that McCarthy could return to her former work as an accounting clerk and a payroll clerk. For that reason, the ALJ found that McCarthy was not disabled. The Appeals Council denied McCarthy's request for review, making the ALJ's decision the final decision of the Acting Commissioner.

         Discussion

         McCarthy contends that the decision must be reversed because the ALJ erred at Step Two in finding that she did not have a medically determinable severe mental impairment, failed to include a limitation based on diverticulitis, and improperly ...


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