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Benoit v. Berryhill

United States District Court, D. New Hampshire

December 3, 2018

Tammy Lee Benoit
Nancy A. Berryhill, Acting Commissioner, Social Security Administration



         Tammy Benoit moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny her application for Social Security disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423. 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”), is necessarily 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). However, the court “must uphold a denial of social security disability 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 standard of review that applies when an applicant claims that an SSA adjudicator made a factual error,

[s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner's] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

         In addition, “‘issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Acting Commissioner],' and ‘the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [her], not for the doctors or for the courts.'” Id. (quoting Rodriguez, 647 F.2d at 222). Thus, 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).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement, document no. 13, is part of the court's record and is summarized here, not repeated in full.

         In July of 2015, Benoit applied for DIB, claiming that she had become disabled on April 3, 2014, as a result of anxiety, bipolar disorder, depression, severe mood disorder, tennis elbow on the right side, scoliosis, [1] pain in her right ankle, and lower-back arthritis. On the date of her application, she was 50 years old, and had worked as a dishwasher and dietary aide at a nursing home, as a bartender, and as a cashier.

         In October of 2015, Dr. Robert McGan, a non-examining state-agency consultant, reviewed Benoit's medical records. Based upon that review, Dr. McGan assessed Benoit's physical residual functional capacity (“RFC”).[2] He determined that she could lift and/or carry 10 pounds frequently and 20 pounds occasionally, stand and/or walk (with normal breaks) for about six hours in an eight-hour workday, sit (with normal breaks) for about six hours in an eight-hour workday, and push and/or pull the same amount she could lift and/or carry. With respect to postural activities, Dr. McGan opined that Benoit had an unlimited capacity for climbing ramps and stairs, and for balancing, but could only occasionally climb ladders, ropes, or scaffolds; stoop; kneel; crouch; or crawl. He identified no manipulative, visual, communicative, or environmental limitations.

         Also in October of 2015, Dr. William Kirmes performed a consultative physical examination on Benoit.[3] In the report on his examination, Dr. Kirmes indicated diagnoses of: (1) very mild scoliosis; (2) chronic low-back pain; (2) mild pes planus of the right foot;[4] (4) ankle pain secondary to flatfoot; and (5) elbow pain from epicondylitis, [5] which had resolved. In the section of his report devoted to limitations, Dr. Kirmes stated that Benoit could: (1) bend occasionally; (2) walk 100 yards or more; (3) lift 20-25 pounds occasionally with both arms; (4) sit for 30 minutes without difficulty; (5) stand for 45 to 60 minutes without difficulty; and (6) carry 25 to 30 pounds occasionally.

         In October of 2015, Dr. Denise Moquin performed a consultative psychological examination on Benoit. She gave diagnoses of unspecified anxiety disorder, unspecified mood disorder, and unspecified personality disorder. With respect to Benoit's then-current level of functioning, Dr. Moquin provided the following findings:

a) Activities of daily living: . . . Despite symptoms endorsed, the claimant is able to properly care for personal affairs, shop, cook, drive[], pay bills, maintain her residence, and care for grooming and hygiene.
b) Social functioning: . . . Due to the severity of psychological symptoms, the claimant lacks the capacity to interact appropriately and communicate effectively with family, friends, co-workers, people in authority over her, and people in the community.
c) Understanding and remembering instructions: . . . [T]he claimant has the ability to understand and remember both short and simple instructions, in addition to more complex instructions.
d) Concentration and task completion: . . . [T]he claimant has the ability to maintain attention and concentration to complete tasks.
e) Reaction to stress, adaptation to work or work-like situations: . . . [T]he claimant has the ability to tolerate stresses common to a work setting, make simple decisions, maintain attendance, and adhere to a schedule. She lacks the capacity to interact appropriately with people in authority over her at this time, due to the severity of symptoms.

         Administrative Transcript (hereinafter “Tr.”) 411-12.

         In November of 2015, Dr. Russell Phillips, a non-examining state-agency consultant, reviewed Benoit's medical records, including Dr. Moquin's report, and conducted both a psychiatric review technique (“PRT”) assessment and an assessment of Benoit's mental RFC.[6]

         As part of his PRT assessment, Dr. Phillips found that Benoit had: (1) mild restrictions on her activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated episodes of decompensation each of extended duration. Those four areas of mental functioning, in turn, correspond to the so-called paragraph B criteria for the impairments of affective disorders, anxiety-related disorders, and personality disorders, as those impairment were described in SSA regulations that were in force when Dr. Phillips performed his PRT assessment. Those regulations, however, were replaced as of January 17, 2017.

         Turning to his assessment of Benoit's mental RFC, Dr. Phillips first determined that Benoit had no limitations on understanding or memory. With respect to concentration and persistence, Dr. Phillips determined that Benoit had no significant limitations on six of eight abilities and moderate limitations on the other two.[7] He offered the following explanation: “The claimant can maintain attention for two hours at a time and persist at simple tasks over eight- and forty-hour periods with normal supervision.” Tr. 85. With respect to social interaction, Dr. Phillips determined that Benoit had no significant limitation on one of five abilities, moderate limitations on three abilities, [8] and a marked limitation on the remaining ability.[9] He offered the following explanation: “She can tolerate the minimum social demands of simple-task settings; she cannot tolerate sustained contact with the general public.” Tr. 86. With regard to adaptation, Dr. Phillips determined that Benoit had no significant limitations on three of four abilities and had a moderate limitation on the other one.[10] He offered the following explanation: “She can tolerate simple changes in routine, avoid hazards, travel independently, and make/carry out simple plans.” Id.

         After the SSA denied Benoit's application for DIB, she received a hearing before an ALJ. At the hearing, which was held on February 2, 2017, the following exchange ensued between Benoit and her counsel:

Q Okay, and would you be okay interacting with people at work?
A No, no, just do your work and leave me alone. I just want to do my work, I don't want to chit chat, I don't want to have no conversation, no social, just work, that's it. I don't like to socialize with people.
Q So, if you had a supervisor come in and check on your work, how would that - A Check on my ...

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