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Paquet v. Berryhill

United States District Court, D. New Hampshire

April 4, 2019

Nicole Lee Paquet
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          ORDER

          Joseph N. Laplante, United States District Judge

         Nicole Paquet 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, or 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 affirmed.

         I. Scope of Review

         The scope of judicial review of the Acting Commissioner's decision is as follows:

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, “‘the drawing of permissible inference from evidentiary facts [is] 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. 11, is part of the court's record and is summarized here, not repeated in full.

         Paquet was born in 1982. She has worked as a teacher and as an after-school teacher. She left her most recent job, as a middle-school math teacher, on December 6, 2013. According to the Disability Report that Paquet filed with the SSA, she stopped working: (1) because of her physical and mental conditions; and (2) to take care of her stepson, who had mental-health issues of his own. Paquet's medical records document treatment for, among other things, degenerative disc disease, bulimia, depression, anxiety, and an episode of cardiac palpitation.

         Paquet applied for DIB on January 7, 2013, claiming that she became disabled on December 9, 2013, as a result of degenerative disc disease, anxiety, and depression. She did not list bulimia as a disabling impairment.

         In April of 2014, Dr. Natacha Sochat, a physician and a state-agency consultant who reviewed Paquet's medical records, provided an opinion on Paquet's physical residual functional capacity (“RFC”).[1] In it, Dr. Sochat opined that Paquet had the RFC to: (1) lift and/or carry and push and/or pull 10 pounds frequently and 20 pounds occasionally; (2) stand and/or walk (with normal breaks) and sit (with normal breaks) for about six hours in an eight-hour workday. With respect to postural activities, Dr. Sochat found that Paquet could occasionally climb ramps/stairs, climb ladders/ropes/scaffolds, balance, stoop, kneel, crouch, and crawl. Finally, Dr. Sochat opined that Paquet had no manipulative, visual, communicative, or environmental limitations.

         Also in April of 2014, Paquet was seen by Dr. Darlene Gustavson for a consultative psychological examination.[2] Dr. Gustavson diagnosed Paquet with bulimia nervosa, mild alcohol-use disorder, panic disorder without agoraphobia, and mild recurrent major depressive disorder. She also offered her opinions on Paquet's then-current level of functioning, but because those opinions are not at issue, there is no need to describe them in detail.

         In May of 2014, Dr. Edward Martin, a state-agency psychological consultant who reviewed Paquet's medical records, assessed her mental RFC. After acknowledging diagnoses of affective disorders, anxiety-related disorders, somatoform disorders, [3] and substance-abuse disorders, Dr. Martin opined that Paquet had no limitations in the realms of social interaction and adaptation. With respect understanding and memory, Dr. Martin opined that Paquet was not significantly limited in two of three abilities, but was moderately limited in her ability to understand and remember detailed instructions. With respect to sustained concentration and persistence, he opined that Paquet was not significantly limited in seven of eight abilities, including the abilities to: (1) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and (2) complete a normal workday and workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable No. and length of rest periods. Dr. Martin did, however, opine that Paquet was moderately limited in her ability to carry out detailed instructions.

         Also in May of 2014, Dr. Alfredo Perez, an internist who was Paquet's primary care physician, wrote a letter addressed “to whom it may concern, ” that says, in its entirety: “Given Ms. Paquet's current medical status it would be advisable for her to take a leave of absence from work for one year.” Administrative Transcript (hereinafter “Tr.”) 855. In May of 2015, Dr. Perez wrote a second letter, “to whom it may concern, ” that states, in pertinent part:

This letter is an addendum to [a] letter written on 5/28/14 in regards to Ms. Paquet being out of work for a one year period.
As per patient's request, as so stated, these are the medical reasons why she was unable to work: depression, anxiety and chronic lower back pain.

Tr. 448.

         Finally, in July of 2015, Wayne Castro, a licensed clinical mental-health counselor who had seen Paquet for a 50-minute session every other week for an unstated length of time, completed a Mental Impairment Questionnaire on Paquet. Among other things, Mr. Castro opined that Paquet's impairments, or treatment for them, would cause her to miss, on average, more than four days of work per month.[4]

         The SSA denied Paquet's application for DIB. Thereafter she received a hearing before an ALJ. At the hearing, the ALJ posed a series of hypothetical questions to a vocational expert (“VE”). In his second question, the ALJ posited a 33-year-old individual with a bachelor's degree, the claimant's work history, and the following limitations:

[S]he can lift 20 pounds occasionally, ten pounds frequently; can stand or walk for six, sit for six; [has] unlimited use of her hands and feet to operate controls and push and pull; all of the postural functions are at the occasional [level] . . . . [S]he is able to remember locations and work like procedures and understand, recall and carry out short and simple instructions without special supervision; can pay attention and maintain concentration for extended periods; [is] able to adhere to a regular schedule and maintain attendance within customary expectations; [can] complete a normal eight hour workday and 40 hour workweek without unreasonable No. of interruptions, breaks, absences or episodes of distraction; can ask simple questions; [can] request assistance; [can] accept short and simple instructions and respond appropriately to supervisory criticism and to changes in the work setting.

Tr. 88-89. According to the VE, the person described in the ALJ's second hypothetical question could not perform Paquet's past work as a teacher or as an after-school teacher, but could perform the following unskilled light-duty jobs: price marker, mailroom clerk, and laundry classifier.[5]

         Subsequently, in response to two hypothetical questions from Paquet's counsel, the VE testified that: (1) a person who was off task between 10 and 15 percent of the time would not be able to hold any job;[6] and (2) absence from work four or more days per month would preclude any employment.

         After Paquet's hearing, the ALJ issued a decision in which he determined that claimant had three severe impairments: “degenerative disc disease of the lumbar spine; major depressive disorder, recurrent, mild; and generalized anxiety disorder.” Tr. 36. The ALJ did not identify claimant's bulimia as a severe impairment, nor did he discuss that impairment in any way. He went on to find that none of Paquet's severe impairments, either alone or in combination, met or medically equaled the severity of any of the impairments on the SSA's list of impairments that are per se disabling. Next, the ALJ provided the following assessment of Paquet's RFC:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can stand and/or walk for up to six hours in an eight hour workday and can sit for up to six hours in an eight hour workday. The claimant has unlimited use of the feet but can stoop, kneel, crouch, balance, and crawl occasionally. The claimant can climb ramps and stairs in addition to ropes, ladders, and scaffolds occasionally. The claimant can understand, recall, and carry out short and simple instructions without special supervision. The claimant can pay attention and maintain attention for extended periods. The claimant can complete a normal eight hour workday and 40 hour work week without an unreasonable No. of interruptions, breaks, absences, or episodes of distraction. The claimant can adhere to a regular schedule and maintain attendance within customary expectations. The claimant can respond appropriately to supervisor criticism.

Tr. 39. Based upon the RFC he assessed, and the testimony of the VE, the ALJ determined that Paquet was unable to perform her past work but could do the jobs of price marker, laundry classifier, and mailroom clerk. Consequently, the ALJ determined that Paquet was not under a disability from December 9, 2013, through May 26, 2016, which was the date of his decision.

         III. Discussion

         A. The Legal Framework

         To be eligible for disability insurance benefits, a person must: (1) be insured for that benefit; (2) not have reached retirement age; (3) have filed an application; and (4) be under a disability. 42 U.S.C. § 423(a)(1)(A)-(D). The only question in this case is whether the ALJ correctly determined that Paquet was not under a disability from December 9, 2013, through May 26, 2016.

         To decide whether a claimant is disabled for the purpose of determining eligibility for DIB, an ALJ is required to employ a five-step sequential evaluation process. See 20 C.F.R. § 404.1520.

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant's] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the ...

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