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Wallaga v. Berryhill

United States District Court, D. New Hampshire

May 6, 2019

Jamie Wallaga
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          D. Lance Tillinghast, Esq.

          Hugh Dan Rappaport, Esq.

          ORDER

          Joseph N. Laplante United States District Judge.

         Jamie Wallaga 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

         Wallaga was born in 1956. She retired from her position as a customer service representative in November of 2002, but on several occasions between 2012 and 2014 she tried to get work, and she had at least three job interviews. Wallaga was last insured for DIB on December 31, 2011, which is her so-called “date last insured” or “DLI.”

         In December of 2009, Wallaga saw Anne Marcoux, a nurse practitioner (“NP”), for a follow-up appointment and to have her blood sugar monitored. In her progress note, NP Marcoux indicated that Wallaga had a history of mood disorder, and she listed eight diagnoses, including mood disorder, not otherwise specified. However, she proposed no treatment for Wallaga's mood disorder. Between December of 2009 and November 16, 2011, NP Marcoux wrote six more progress notes after seeing Wallaga. In four of the six, she listed mood disorder as a diagnosis, but in only one note did NP Marcoux propose a treatment for that condition.

         Specifically, during an appointment in July of 2011, Wallaga reported a situation with her son that NP Marcoux described this way:

She has a lot of stress from her son who has taken all of her credit cards and maxed them out with purchases on e-bay, some are even thousands over the limit. She now has over $50, 000 debt because of this and no credit cards left. She is going to see a financial advisor about this. She has tried to get him to a psychiatrist but none have returned her calls. He stays in his room, sleeping all day and on computer at night. Her husband is no help as he works second shift and goes to Maine every week end without them.

         Administrative Transcript (hereinafter “Tr.”) 417. In the section of her progress note devoted to treatment, NP Marcoux made the following suggestion with respect to Wallaga's mood disorder:

[A]dvised [Wallaga] to get counselling for [her] son and herself. Advised [her] to get rid of credit cards probably too late as they are all maxed out by son. Continue to call psych until one returns her call.

Tr. 420. Wallaga appears not to have acted on the advice to get counselling at any point prior to her DLI. Progress notes from August and September of 2011 do not list diagnoses of any mental impairments, and the November 2011 note lists mood disorder as a diagnosis, but proposes no treatment for it.

         After Wallaga's husband served her with divorce papers in March of 2012, she consulted a lawyer who, among other things, “told [her] to get a therapist and a psychiatrist.” Tr. 76.

         In March of 2012, Wallaga presented to Dr. Alain-Marc Werner complaining that she “[n]eed[ed] medication for anxiety [because], her father just passed away and her husband [was] divorcing her.” Tr. 399. In the history section of his progress note, Dr. Werner reported:

[L]ast week got divorce papers from husband, next day father died, was then evicted. [H]ere w[ith] youngest sister [J]ill, living with her, massive stress anxiety constant crying pacing talking to self . . . never left alone. [N]o serious suicidal thoughts. [H]ad to meet a divorce lawyer, has hearing next week. [N]o past [history of] mental illness, few glasses wine / day no [change].

Id. Dr. Werner diagnosed Wallaga with anxiety and prescribed lorazepam.[1]

         In April of 2012, Wallaga began treating with Dr. Debra Little, a psychiatrist. In her clinical evaluation, Dr. Little described Wallaga's presenting problem: “[H]usband abruptly announced intent to divorce while [Wallaga's] father was dying in hospice. Patient endorses anxiety and depression.” Tr. 749. Under the heading “Previous Psych/CD Treatment H[istory], ” Dr. Little indicated that Wallaga had had no such treatment. See Id. In her mental-status assessment, Dr. Little found that: (1) Wallaga's general appearance/facial expression and speech were within normal limits; (2) her attention span, insight, and judgment were good; (3) she had no hallucinations or delusions; (4) her mood was anxious and depressed; and (5) her affect was restricted. Dr. Little concluded by: (1) making a diagnosis of adjustment disorder with depressed mood; (2) recommending individual therapy and psychopharmacology; and (3) prescribing Remeron and Ativan.[2]

         Also in April of 2012, Wallaga began seeing Shawn Teal, a mental health counsellor, for weekly cognitive behavioral therapy sessions. Mr. Teal noted that Wallaga had a depressed mood, and that her chief complaint was anxiety.

         In July of 2013, Wallaga was taken to a hospital emergency room by her sister and sister-in-law who were concerned by suicidal comments she had made after a night of heavy drinking. She was discharged later that day with diagnoses of depression and alcohol abuse and instructions to contact her psychiatrist and her counsellor.

         Wallaga applied for DIB in September of 2014 claiming that she had been disabled since December 31, 2011, which was also her DLI. According to Wallaga, her disability resulted from back pain, neck pain, depression, anxiety, and vertigo.

         As a part its evaluation of Wallaga's application, the SSA had Dr. Nicholas Kalfas, a psychologist and state-agency consultant, review her medical records. After doing so, Dr. Kalfas had this to say: “Although there is medical evidence to suggest that claimant has anxiety and/or depression, there is no [diagnosis of a medically determinable impairment] from [an acceptable medical source] and insufficient evidence to fully assess functioning from AOD [the date on which Wallaga alleges she became disabled] to DLI, ” Tr. 97. The SSA denied Wallaga's application and explained its decision this way:

In order to be entitled [to] benefits your condition must be found to be severe prior to 12/31/2011. The evidence [on] file is not sufficient to fully evaluate your claim and the evidence needed cannot be obtained. We have determined your condition was not disabling on any date through 12/31/2011, when you were last insured for disability benefits. In deciding this, we considered ...

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