Duguay v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 10 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Anna C. Duguay
v.
Civil No. 13-cv-273-JL
Opinion No. 2014 DNH 207
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
SUMMARY ORDER
Anna C. Duguay has appealed the Social Security
Administration’s (“SSA”) denial of her applications for
disability insurance benefits and Supplemental Security Income,
which claimed an onset date of March 2011.
An administrative law
judge at the SSA (“ALJ”) ruled that, despite Duguay’s severe
impairments (i.e., anxiety disorder/post-traumatic stress
disorder and “minor motor seizures”), she retains the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and, as a result, is
not disabled.
See 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Appeals Council later denied Duguay’s request for review
of the ALJ’s decision, see id. §§ 404.968(a), 416.1479, so the
ALJ’s decision became the SSA’s final decision on Duguay’s
application, see id. §§ 404.981, 416.1481.
She appealed the
decision to this court, which has jurisdiction under 42 U.S.C.
§ 405(g) (Social Security).
Duguay has filed a motion to reverse the decision.
9.1(b).
See L.R.
She argues that the ALJ erred by (1) misidentifying her
severe impairments, (2) failing to find that she suffered from an
impairment or combination of impairments that meets or medically
equals the severity of a listed impairment, specifically, anxiety
disorder, see 20 C.F.R. § 404, subp. P, app. 1, pt. A, ¶ 12.06,
which would have made an analysis of her RFC unnecessary, id.
§§ 404.1520(d), 416.920(d), and (3) giving substantial weight to
the assessment of a consulting psychologist, while giving only
limited weight to the assessment of Duguay’s treating
psychiatrist.1
The Commissioner of the SSA has filed a motion to
affirm the decision, see L.R. 9.1(e), arguing that these findings
were supported by substantial evidence, see Richardson v.
Perales, 402 U.S. 389, 401 (1971).
1
For the reasons explained
Duguay also argues that the ALJ “made inconsistent
findings” when he concluded that Duguay’s “medically determinable
impairments could reasonably be expected to cause [her] alleged
symptoms” but also that she “had failed to establish a
correlation between her allegations and the objective medical
evidence.” Those conclusions, in fact, reflect the separate
inquiries that make up the first two steps of an ALJ’s required
evaluation of a claimant’s alleged symptoms--a procedure which
specifically contemplates, as the ALJ found here, that a claimant
can have an underlying impairment that could produce the symptoms
she claims yet still lack objective medical evidence
substantiating those claims. SSR 96-7p, Titles II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, 1996 WL 37416 (S.S.A.
1996). So those findings were not “inconsistent.”
2
below, this court denies Duguay’s motion and grants the
Commissioner’s.
Severe impairments.
As noted at the outset, the ALJ found
that Duguay suffered from severe impairments, to wit, “anxiety
disorder/post-tramautic stress disorder” and “minor motor
seizures.”
Duguay argues that this was in error because “[t]he
medical record does not document that the claimant was diagnosed
with ‘minor motor seizures’ at all” but, rather, episodes of
syncope, i.e., fainting, caused by her PTSD and anxiety.
It
should be noted that syncope and seizures are often confused,
see, e.g., Merck Manual of Diagnosis & Therapy 586 (Mark H.
Beers, ed., 18th ed. 2006), but, in any event, the ALJ’s
confusion in terminology on this point made no difference.
Duguay does not claim that syncope, as such, is itself a severe
impairment in addition to her PTSD and anxiety, but rather that
it is a symptom of her PTSD and anxiety disorder--which are among
the impairments the ALJ found Duguay to have.
It is hard to
imagine how this court could reverse an ALJ’s decision because
the ALF found the claimant to have too many severe impairments.
Indeed, an ALJ’s decision should not be reversed even for
finding the claimant to have too few severe impairments, unless
the lack of any severe impairment was the reason for the ultimate
finding that the claimant was not disabled.
3
See Syms v. Astrue,
2011 DNH 138, 3-4 (DiClerico, J.) (collecting cases).
This is so
because, once an ALJ identifies one severe impairment, he “must
consider the limiting effects of all [the impairments], even
those that are not severe.”
id. § 416.923.
20 C.F.R. § 404.1545(e); see also
While Duguay suggests that the ALJ in fact failed
to consider the limiting effects of her syncope in the balance of
analysis, that is belied by the decision itself, which, as the
Commissioner points out, repeatedly refers to Duguay’s syncope.
The ALJ’s mistake in identifying that condition as “minor motor
seizures” in listing Duguay’s severe impairments, then, cannot
support her motion to reverse his decision.2
See, e.g., Santiago
v. Astrue, 2013 DNH 048, 5.
Listed impairment.
Duguay claims that the ALJ erred in
finding that she did not meet the criteria for a listed
impairment, namely, anxiety disorder, under 20 C.F.R. § 404,
subp. P, app. 1, pt. A, ¶ 12.06.
The ALJ explained that he had
considered not only that listing, but also those for epilepsy,
see id. ¶ 11.03, and affective disorders, see id. ¶ 12.06, but
2
The same is true of Duguay’s argument that the ALJ failed
to consider whether she had a combination of impairments that is
severe, see 20 C.F.R. §§ 404.1520(c), 416.920(c), which, as
Duguay acknowledges, “is not necessarily a reversible error if,”
as just discussed, “the ALJ considered the combination of
impairments and the combined effect of multiple impairments later
in [his] analysis.” Contrary to Duguay’s claim, the ALJ did so.
4
found that Duguay “does not have an impairment or combination of
impairments that meets or medically equals” any of those
listings.
Duguay claims that the ALJ made a number of errors in
coming to that conclusion.3
The court disagrees.
Duguay argues that, “perhaps most importantly” (emphasis
omitted), the ALJ mistakenly relied on the fact that Duguay’s
“representative did not argue at the hearing that the claimant’s
impairments met any listing.”
But as the Commissioner points
out--and the ALJ noted in the next sentence of his decision--the
claimant indeed has the burden of proving that her impairment
meets a listed impairment.
530-31 (1990).
Sullivan v. Zebley, 493 U.S. 521,
Duguay acknowledges this point of law, but argues
that it does not relieve the ALJ of his responsibility to
“provide some analysis of [the] medical evidence in making [his]
listing determination.”
The ALJ did that here, however.
To meet the listing for an anxiety disorder, a claimant must
have certain symptoms that result in either:
• two or more of the following: marked restrictions of
activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in
3
Duguay complains that the ALJ erroneously considered the
listing for epilepsy even though she “did not allege that she had
seizure activity or epilepsy,” and the listing for affective
disorders even though he did not find that she was severely
impaired by one. In line with what was just discussed above,
however, it is hard to see reversible error in an ALJ’s “overconsideration” of potential impairments.
5
maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of an extended duration
(the “paragraph B criteria”); or
• complete inability to function independently outside the
area of one’s home (the “paragraph C criteria”).
20 C.F.R. § 404, subp. P, app. 1, pt. A, ¶ 12.06.
The ALJ found
that Duguay did not meet any of the paragraph B criteria because
she had only mild restrictions in activities of daily living;
moderate difficulties in social functioning; mild difficulties in
maintaining concentration, persistence or pace; and no episodes
of decompensation of extended duration.
The ALJ also found that
Duguay failed to meet the paragraph C criteria in that there was
no evidence of her complete inability to function independently
outside the area of her home.
In finding that Duguay did not meet any of the listings that
were considered, the ALJ specifically noted that he had
“considered the reports of [Duguay’s] treating physicians as well
as the opinions of the State Agency medical consultants who
evaluated this issue . . . and reached a similar conclusion.”
discussed in more detail infra, one of those consultants was
As
Edward Martin, Ph.D, who found that Duguay had no more than
moderate limitations in any of the areas tested by paragraph B
criteria, and that she also did not meet the paragraph C
criteria, of the anxiety disorder listing.
6
This was sufficient
evidence to support the ALJ’s identical findings.4
ex rel. D.P. v. Colvin, 2014 DNH 022, 3-4.
See Gaudette
Contrary to Duguay’s
claim, then, the ALJ did not fail to “reveal the conflicting
medical evidence that he relied upon in the record to decide
[Duguay] did not meet the mental impairment listings.”
As further support for his conclusions that Duguay did not
meet the criteria for a listed anxiety disorder, the ALJ relied
on a “function report” that Duguay had submitted to the SSA.
Duguay claims that, in so doing, the ALJ “mis-stated” the report
insofar as he found that it showed that Duguay (1) “lives in a
house with family without any noted special accommodations and
services,” (2) did not “report limitations in her physical
functioning,” and (3) “reports regular interactions with friends,
on the phone, by texting or in person.”
These observations are
accurate despite Duguay’s quibbling that (1) she “was not asked”
on the form “about any special accommodations,” (2) she reported,
on the form, limitations on her emotional functioning due to her
PTSD, and (3) in reporting that she “spen[t] time with others,”
she answered further that she did it “not too often.”
See Allard
v. Colvin, 2014 DNH 034, 7-8 n.4 (ruling that claimant’s report
4
As discussed infra, the ALJ acted within his discretion in
giving substantial weight to Martin’s opinions.
7
of her activities adequately supported the ALJ’s findings even if
he slightly overstated their frequency).
More importantly, Duguay does not point to anything on the
form suggesting that, contrary to the ALJ’s finding, she in fact
meets at least two of the paragraph B criteria, or the paragraph
C criteria, necessary to satisfy the anxiety disorder listing.
Indeed, in her motion to reverse, Duguay does not point to any
evidence in the record that “conflicts” with the ALJ’s findings
that she did not in fact meet the criteria for an anxiety
disorder, nor, for that matter, does she even identify which of
those criteria she claims to satisfy.
The ALJ’s conclusion that
Duguay did not suffer from a listed anxiety disorder was both
adequately supported and adequately explained.
Opinion evidence.
Finally, Duguay argues that the ALJ erred
by giving substantial weight to the opinions of Martin, but
limited weight to the opinions of Duguay’s treating psychiatrist,
Dr. Philip Santora, in determining her RFC.
In September 2012,
Santora completed a “mental impairment questionnaire” opining
that Duguay had marked impairments in social functioning and in
maintaining concentration, persistence, or pace, as well as
serious limitations in her ability to interact with the general
public, to maintain attention for two-hour periods, and to
sustain an ordinary routine without supervision.
8
The ALJ,
however, found that these opinions were “not supported by
[Duguay’s] mental health records, including Dr. Santora’s own
treatment notes.”
In support of this finding, the ALJ pointed to
places in Santora’s notes describing test results that were
“indicative of moderate symptoms[,] not marked,” as well as his
observations that Duguay “has good attention span and
concentration, and fair to good insight and judgment.”
In her motion to reverse, Duguay does not question the ALJ’s
characterization of Santora’s notes, nor the ALJ’s reliance on
them as undermining Santora’s opinions.
Instead, Duguay argues
that the ALJ erred by failing to consider treatment notes from a
different source, Kate Murphy, a licensed clinical mental health
counselor who is part of the same practice as Santora, the
Greater Nashua Mental Health Center.
While the ALJ’s decision
does not mention Murphy by name, it specifically refers to
“[t]reatment notes from [Santora’s] practice at Greater Nashua
Mental Health Center.”
Moreover, aside from a reference to
Murphy’s observations at an evaluation and several subsequent
counseling sessions in early 2012 that Duguay was “visibly
trembling,” the motion to reverse does not identify anything in
Murphy’s treatment notes that supports Santora’s opinions as to
Duguay’s mental and social limitations.
So the ALJ did not err
by failing to mention Kelly’s observations by name in finding
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that Duguay’s mental health records, including treatment notes
from Santora’s practice, did not support his opinions that Duguay
suffered marked impairments or serious limitations in several
areas of functioning.
See Chapin v. Astrue, 2012 DNH 177, 3-6 &
n.2 (upholding ALJ’s decision to give limited weight to the
opinions of medical sources that were inconsistent with their
treatment notes, even though the ALJ identified one of those
sources only by the name of her practice).
The ALJ likewise did not err by giving substantial weight to
Martin’s opinions, despite Duguay’s familiar argument that those
opinions were “based on an incomplete record.”
It is true, as
Duguay points out, that the report of Martin’s opinions was dated
July 31, 2012, and stated that they were based on, among earlier
records, those generated by Greater Nashua Mental Health Center
through May 29, 2012.
But, aside from the mental impairment
questionnaire that Santora completed in September 2012--to which,
as just discussed, the ALJ supportably declined to give
controlling weight insofar as it noted marked impairments or
serious limitations--Duguay does not point to anything in her
medical records from May 30, 2012 or later that contradicts
Martin’s opinions in any way.5
So the ALJ properly gave
5
Elsewhere in her motion, Duguay refers to reports of her
emergency room visit in August 2012, where she reported injuring
her elbow when she fell after passing out, as well as a September
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substantial weight to those opinions in determining Duguay’s RFC.
See, e.g., Comeau v. Colvin, 2013 DNH 145, 18-19, aff’d without
opinion, No. 13-2542 (1st Cir. June 25, 2014).
Indeed, as this court has repeatedly stated, “an ALJ can
rely exclusively on the assessments of non-testifying, nonexamining” medical sources in adjudicating a claimant’s RFC, and
conflicts between those assessments and other medical testimony
“are for the ALJ to resolve.”
Morin v. Astrue, 2011 DNH 091, 9-
10 (citing Berrios-Lopez v. Sec’y of HHS, 951 F.2d 427, 431-32
(1st Cir. 1991)) and Tremblay v. Sec’y of HHS, 676 F.2d 11, 12
(1st Cir. 1991)).
Furthermore, “[t]he ALJ decision to resolve
that conflict against the claimant should be affirmed if ‘that
conclusion has substantial support in the record.’”
Tremblay, 676 F.2d at 12).
Id. (quoting
As just discussed, that is the case
here, where Duguay has pointed to nothing in the record that
meaningfully undermines the ALJ’s reliance on Martin’s opinions
rather than Santora’s.
2012 treatment note from Santora noting her report of 4-5 syncope
episodes since June 2012. But Duguay’s motion does not explain
how these reports undermine Martin’s opinions as to her mental
and social functioning. To the contrary, Santora considered
these episodes to be a potential indicator of partial complex
seizure disorder--an impairment that, in her motion to reverse,
Duguay claims the ALJ was wrong even to consider.
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Conclusion.
Based on the foregoing, Duguay’s motion to
reverse the ALJ’s decision (document no. 8) is DENIED, and the
Commissioner’s motion to affirm that decision (document no. 10)
is GRANTED.
See 42 U.S.C. § 405(g).
The clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated:
cc:
September 30, 2014
Janine Gawryl, Esq.
Robert J. Rabuck, AUSA
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