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Duchesne v. Berryhill

United States District Court, D. New Hampshire

March 19, 2019

Fawn Duchesne
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          D. Lance Tillinghast, Esq., Rami M. Vanegas, Esq.

          ORDER

          Joseph A. DiClerico, Jr, United States District Judge.

         Fawn Duchesne seeks review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner that denied her application for disability insurance benefits under Title II. In support, she contends that the Administrative Law Judge (“ALJ”) erred in weighing the medical opinion evidence, which caused him to assess an erroneous residual functional capacity. 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 if 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, when “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

         Fawn Duchesne applied for disability benefits, alleging an amended disability onset date of June 3, 2015, when she was thirty-six years old. She had previously worked as a teacher, a cashier, a waitress, a police officer, a photo developer, and a sandblaster/graphic designer.

         Neither Duchesne nor the Acting Commissioner include information about the record evidence of Duchesne's mental or physical medical treatment in their factual statements. Instead, both factual statements summarize the administrative proceedings and the opinions provided in the record. Therefore, the background includes nothing about what treatment, if any, Duchesne may have had for mental or physical impairments.

         A. Procedural History

         After the Disability Determination Services denied Duchesne's application, she requested a hearing before an ALJ. At the first hearing, Duchesne's representative requested consultative examinations. Therefore, the hearing ended.

         Another hearing was held on February 28, 2017. During that hearing Duchesne asked to amend her alleged disability onset date. That request was granted, and the hearing ended.

         A third hearing was held on July 23, 2017. Dr. John Kwock, a board certified orthopedic surgeon testified to give his opinion about Duchesne's claimed orthopedic impairments. That hearing was continued to allow a psychologist, Billings Fuess, Ph.D., time to review Duchesne's records. A fourth hearing was held on February 1, 2018, during which Dr. Fuess, Dr. Charles Cooke, and a vocational expert testified.[1]

         The ALJ issued a decision on February 28, 2018, finding that Duchesne was not disabled. The ALJ found that Duchesne had severe impairments due to degenerative disc disease in her lumbar and cervical spine, fibromyalgia, small fiber neuropathy, anxiety/PTSD, depression, and a somatoform disorder. Based on opinions provided by Dr. Kwock, Dr. Cooke, Dr. Loeser, Dr. Williams, and Dr. Fuess the ALJ determined that Duchesne had the residual functional capacity to do light work with some postural and activity limitations and with limitations to a low stress environment, only occasional interaction with the general public, and needing a non-critical supervisor. Although the ALJ found that Duchesne was unable to perform any of her past work, he found that she could do other work as shown by the vocational expert's testimony. The Appeals Council denied her request for review.

         B. Opinion Evidence

         The record includes opinion evidence from Duchesne's treating physician, Warren Chin, D.O.; her treating psychologist, Cheryl Bildner, Ph.D.; consultant physicians, John Kwock, M.D., Charles Cooke, M.D., Peter Loeser, M.D.; James Williams, M.D.; and a consultant psychologist, Billings Fuess, Ph.D.

         1. Medical Opinions

         a. Dr. Chin

         Duchesne's primary care physician, Dr. Chin, is an osteopath. Dr. Chin provided a Physical Impairment Medical Source Statement on February 23, 2017. He stated that Duchesne had been diagnosed with fibromyalgia and that she suffered from severe pain. On the form, Dr. Chin checked the box showing that pain would rarely interfere with Duchense's ability to work but then checked boxes that she had very limited ability to walk, stand, and sit, ...


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