Durgin v. Berryhill

• Decision Date: 24 July 2017
• Docket Number: Case No. 16-cv-451-SM
• Parties: Maryellen Durgin v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration
• Court: U.S. District Court — District of New Hampshire

Maryellen Durgin v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration

Case No. 16-cv-451-SM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

July 24, 2017

REPORT AND RECOMMENDATION

Pursuant to 42 U.S.C. § 405(g), Maryellen Durgin moves to reverse the Acting Commissioner's decision to deny her applications for: (1) Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, see 42 U.S.C. § 423; (2) widow's insurance benefits, also under Title II, see 42 U.S.C. § 402; and (3) supplemental security income, or SSI, under Title XVI, see 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter should be remanded to the Acting Commissioner for further proceedings.

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) (setting out the standard of review for Title II decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for Title XVI decisions). However, the court "must uphold a denial of social security . . . 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 statutory requirement that the Acting Commissioner's findings of fact be supported by substantial evidence, "[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts." Alexandrou v. Sullivan, 764 F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). In turn, "[s]ubstantial evidence is 'more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Currier v. Sec'y of HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). But, "[i]t is the responsibility of the [Acting Commissioner] to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the [Acting Commissioner], not the courts." Irlanda Ortiz v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations omitted). Moreover, 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). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must "review[] the evidence in the record as a whole." Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).

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 will be summarized here, rather than repeated in full.

Durgin last worked in September of 2013, when she was discharged from her position as a receptionist. At the hearing on her claims, before an Administrative Law Judge ("ALJ"), Durgin testified that she was discharged because her employer "felt that [she] was making too many mistakes." Administrative Transcript (hereinafter "Tr.") 65. She made that same point, more expansively, in her Disability Report, in which she gave the following explanation for why she stopped working: "I was [t]erminated from my position. A lot of mental health issues going on. Making mistakes at work . . . ." Tr. 270. After Durgin was discharged, she applied for DIB and SSI. While her applications were pending, Durgin's husband died. Shortly thereafter, she filed an additional application, for disabled widow's benefits.

Durgin has been diagnosed with both physical and mental impairments. Because her claims of error focus exclusively on the manner in which the ALJ evaluated her mental impairments, there is no need to discuss her physical impairments in any detail. As for mental impairments, Durgin has been diagnosed with depression,¹ panic disorder,² attention-deficit hyperactivity disorder ("ADHD"), and generalized anxiety disorder. Treatment for her mental impairments has included both medication and therapy.

After Durgin applied for DIB and SSI, she was sent to Dr. Sandra Vallery for a consultative examination.³ Dr. Vallery examined Durgin and reported her findings in a Comprehensive Psychological Profile. Based upon diagnoses of depressive disorder, panic disorder with some agoraphobia, and ADHD, Dr. Vallery gave the following opinions on Durgin's then-current level of functioning:

Activities of Daily Living: This claimant is able to complete some activities during the day such as grooming and hygiene, some domestic chores, meal preparation, and taking care of personal affairs. She is also running errands.

Social Functioning: This claimant is able to interact appropriately and communicate effectively with family members and friends.

Understanding and Remembering Instructions: This claimant is able to understand instructions. Memory was fair in the clinical interview. She can remember short and simple instructions, but not lengthy and detailed ones at this time given her level of depression and situational stressors.

Concentration and Task Completion: This claimant was able to maintain her attention in this evaluation. She is able to concentrate and persist at task. She is able to pace herself and compete task[s].

Reaction to Stress, Adaptation to Work or Work-like Situations: Given this claimant's situational stressors and her high level of depression, she is not able to tolerate stressors common to a work environment. However, she can make simple decisions, maintain attendance, and interact appropriately with supervisors.

Tr. 447.

Next, Dr. Craig Stenslie, a non-examining state-agency consultant, performed a Psychiatric Review Technique ("PRT")⁴ assessment in which he found that Durgin had: (1) mild restrictions on her activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence or pace; and (4) suffered one or two repeated episodes of decompensation, each of extended duration.⁵ Based upon those findings, Dr. Stenslie determined that Durgin had two severe mental impairments, an anxiety disorder and an affective disorder. Dr. Stenslie also assessed Durgin's mental residual functional capacity ("RFC").⁶ He found that she had no limitations in the areas of: (1) understanding and memory; (2) sustained concentration and persistence; and (3) social interaction. Within the realm of adaptation, Dr. Stenslie found that Durgin had no significant limitations in three areas, but was moderately limited in the area of responding appropriately to changes in the work setting.

After describing Durgin's mental RFC, Dr. Stenslie offered the following additional explanation:

There is no mental health treatment or complaint in [the] notes. A [consultative examination] from Dr. S. Vallery indicates some panic attacks and depression. [Dr. Vallery] opines [that Durgin is] not able to handle stress; however, the [medical evidence of record] would suggest that while she has limited stress tolerance, she does not have a complete inability to deal with stress - Dr. Vallery's statement in this regard is rebutted as not supported by the data and her other statements are accepted as is.

. . . . She is able to deal adequately with all instructions, maintain attention for extended periods, sustain an ordinary routine without special supervision, complete a normal work day and week, and work in coordination with others. She is able to deal adequately with change in a low stress situation.

Tr. 107. Finally, Dr. Stenslie gave the following explanation for ascribing limitations to Durgin that were less restrictive than those ascribed by Dr. Vallery:

The opinion contrasts sharply with the other evidence in the record, which renders it less persuasive. Dr. Vallery's statement that claimant is not able to handle stress, is rebutted as not supported by the data and her other statements are accepted as is. The opinion is without substantial support from other evidence of record, which renders it less persuasive.

Tr. 108.

In addition to the opinions provided by Drs. Vallery and Stenslie, the record includes two other opinions on Durgin's mental RFC that were authored during the summer of 2015. For reasons that will become apparent below, the court will focus on the sections of those opinions that report evaluations of Durgin's capacity to perform semiskilled work.

Jonathan Hickman, a nurse practitioner at Seacoast Mental Health Center ("Seacoast") who had seen Durgin three or four times, completed a Mental Impairment Questionnaire that was cosigned by a supervising physician, Dr. James Kates. With respect to the mental abilities necessary to do semiskilled and skilled work, nurse Hickman and Dr. Kates opined that Durgin was limited, but could perform satisfactorily in two areas: (1) setting realistic goals or making plans independently of others; and (2) dealing with the stress of semiskilled and skilled work. They opined that she was seriously limited but not precluded in two other areas: (1) understanding and remembering detailed instructions; and (2) carrying out detailed...