United States District Court, D. New Hampshire
Lance Tillinghast, Esq.
Dan Rappaport, Esq.
N. Laplante United States District Judge.
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.
Scope of Review
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)).
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).
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).
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.”
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.
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.
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
[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.
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.
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
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
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.
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.
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.
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 ...