Langill v. US Social Security Administration, Acting Commissioner

Filing 21

///ORDER granting 19 Motion to Affirm Decision of Commissioner; denying 11 Motion to Reverse Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Amanda Michelle Langill
v.

Civil No. 13-cv-527-PB
Opinion No. 2015 DNH 027

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
MEMORANDUM AND ORDER
Amanda Michelle Langill seeks judicial review of the
Commissioner’s refusal to reopen her previously denied claim for
disability insurance benefits.

She argues that she established

good cause to reopen because she showed that mental incapacity
prevented her from understanding the procedures for appealing
her denied claim.

For the reasons that follow, I conclude that

substantial evidence supports the Commissioner’s decision.

I

therefore grant the Commissioner’s motion to affirm her decision
and deny Langill’s motion to reverse.

I.
A.

BACKGROUND

Procedural History
In July 2009, Langill, acting without legal counsel, filed

a claim for disability insurance benefits and supplemental
security income.

In her claim, Langill alleged disability due

to “[f]ibromyalgia, rapid heartbeat, sinus arrhythmia, and foot
problems.”

Tr. at 290.

The Social Security Administration

denied Langill’s claim in October 2009.

Langill did not timely

seek further review of the Commissioner’s denial, rendering the
decision final.
On August 2, 2011, Langill filed another claim for
disability benefits, this time represented by counsel.

In that

claim, Langill sought supplemental security income as of her
application date.

She also asked the Commissioner to reopen her

previously denied claim for disability insurance benefits,
alleging an onset date of December 31, 2008, her date last
insured.

Her claim was denied in December 2011, and she

requested a hearing before an Administrative Law Judge (“ALJ”).
That hearing took place on October 24, 2012.
On October 26, 2012, the ALJ found Langill disabled as of
her application date, August 2, 2011, and awarded her
supplemental security income benefits as of that date.
22.

Tr. at

The ALJ, however, declined to reopen Langill’s prior claim

for disability insurance benefits.
2

Tr. at 14-15.

He found that

Langill had not submitted new and material evidence, and he
determined that Langill did not lack the mental capacity to
understand the procedures for seeking further review of her
claim when it was denied in October 2009.

Tr. at 14-15.

Thus,

he concluded, Langill had failed to demonstrate good cause to
reopen her initial claim.

Tr. 14-15.

The Appeals Council affirmed the ALJ’s decision in November
2013.

On December 9, 2013, Langill filed a complaint in this

Court seeking judicial review of the ALJ’s refusal to reopen her
2009 application for disability insurance benefits.
On May 23, 2014, Langill filed an amended complaint.
13.

Doc. No. 1.
Doc. No.

As is relevant here, the amended complaint alleges that

Langill “suffered violation of her due process because the ALJ
did not follow SSA regulations to determine if she had good
cause for re-opening . . . [Langill] showed good cause based on
mental capacity.”

1

Id. at 1.1

The amended complaint also alleged that Langill showed good
cause “based on . . . new and material evidence.” Doc. No. 13
at 1. As I explained in my January 2015 order denying the
Commissioner’s motion to dismiss, this Court lacks subject
matter jurisdiction to address that argument. Doc. No. 18 at 7
n.1; see Dvareckas v. Sec’y of Health & Human Servs., 804 F.2d
770, 772 (1st Cir. 1986); Nerich v. Colvin, 2014 DNH 239, 14-15.
The sole question before me, therefore, is whether Langill’s
3

The Commissioner moved to dismiss Langill’s amended
complaint for lack of subject matter jurisdiction.

Doc. No. 15.

I denied the Commissioner’s motion in January 2015, concluding
that Langill had raised a colorable constitutional claim by
alleging lack of mental capacity to understand how to appeal the
denial of her 2009 claim.

Doc. No. 18.

I now proceed to rule

on both the Commissioner’s motion to affirm her decision, Doc.
No. 19, and Langill’s motion to reverse or remand the decision,
Doc. No. 11.
B.

Stipulated Facts
Pursuant to this Court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts.

Doc. No. 20.

Because their joint statement is part of the Court’s record, I
need not recount it here.

Facts relevant to the disposition of

this matter are discussed as necessary below.

II.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the administrative record
mental capacity prevented her from appealing the denial of her
2009 claim before the deadline to do so expired.
4

and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner.

My review “is limited to

determining whether the ALJ used the proper legal standards and
found facts [based] upon the proper quantum of evidence.”

Ward

v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Findings of fact made by the ALJ are accorded deference as long
as they are supported by substantial evidence.

Id.

Substantial

evidence to support factual findings exists “‘if a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support his conclusion.’”

Irlanda

Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

If the

substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.”

Id. at 770.

Findings are not

conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining issues of credibility and
for drawing inferences from evidence in the record.
5

Irlanda

Ortiz, 955 F.2d at 769.

It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III.

Id.

ANALYSIS

As this Court recently explained in Nerich v. Colvin:
20 C.F.R. § 404.968 allows a claimant sixty days from
receipt of notice of a claim’s denial to request
review of that denial. 20 C.F.R. § 404.968(a)(1). If
a claimant does not request review within the sixtyday period, the Commissioner’s decision becomes final.
20 C.F.R. § 404.987(a). Thereafter, the Commissioner
may reopen a final decision only as provided by 20
C.F.R. § 404.988. Specifically, the Commissioner may
reopen any decision within twelve months “for any
reason,” within four years if the Commissioner
“find[s] good cause” to do so as defined by 20 C.F.R.
§ 404.989, or at any time beyond twelve months under
certain other circumstances that do not pertain here.
See 20 C.F.R. § 404.988. [Social Security Ruling
(“SSR”)] 91-5p, however, stipulates that “[w]hen a
claimant presents evidence that mental incapacity
prevented him or her from timely requesting review of
an adverse determination . . . and the claimant had no
one legally responsible for prosecuting the claim” in
the prior proceedings, the claimant automatically
establishes good cause to reopen the prior decision
regardless of how much time has passed since the
decision was made. SSR 91-5p, 1991 WL 208067, at *2
(July 1, 1991). To establish good cause in this
manner, SSR 91-5p requires claimants to show that they
“lacked the mental capacity to understand the
procedures for requesting review” before the period
for requesting further review expired. Id.
2014 DNH 239, 10-11.
6

Langill’s July 2009 claim was denied in October 2009.
Because she failed to appeal the denial before the deadline to
do so expired in December 2009, it became final at that time.
See 20 C.F.R. § 404.987(a).

Invoking SSR 91-5p to establish

good cause to reopen her claim, Langill now argues that mental
incapacity prevented her from timely appealing her claim’s
denial.

See Doc. No. 11-1 at 5-10.

The ALJ rejected Langill’s argument, determining instead
that “the record fails to show mental incapacity to understand
the procedures for requesting review” before the December 2009
deadline expired.

Tr. at 15.

For that reason, the ALJ

concluded that good cause did not exist to reopen Langill’s 2009
claim under SSR 91-5p.

Tr. at 15.

Langill points to three

items in the record to show that the ALJ’s decision was
unsupported by substantial evidence: a medical evaluation
conducted in 2009 by Dr. Ritamarie Moscola, Langill’s own
testimony during the 2012 hearing before the ALJ, and a
retrospective opinion rendered by Dr. Jeffrey Wagner in 2012.
See Doc. No. 11-1 at 6-9.

This evidence, Langill contends,

establishes that she suffered from depression and memory
problems in October 2009 that prevented her from understanding
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how to appeal the denial of her claim.

See id.

I disagree and

conclude instead that substantial evidence supports the ALJ’s
decision.2

None of the evidence to which Langill points either

individually or collectively suffices to reverse the ALJ’s
decision.
I begin with Dr. Moscola’s report, which documents both
Langill’s diagnosis of depression and Dr. Moscola’s observation
that Langill had been suffering from “memory changes” and “foggy
brain.”

Tr. at 280-81.

Even assuming that Langill experienced

these mental health conditions in 2009, the report offers scant
further details about them, noting only that Langill was taking
antidepressants and “trying to keep depression under control” at
the time.

See Tr. at 280-81.

Despite noting that Langill was

2

Although the First Circuit has not decided in a published
opinion which standard of review should control SSR 91-5p
analysis, the parties agree that the substantial evidence
standard should apply, and that position is consistent with the
past practice of the First Circuit, other courts of appeals, and
this Court. See Frusher ex rel. Frusher v. Astrue, 391 F. App’x
892, 896 (1st Cir. 2010) (per curiam) (applying substantial
evidence standard in SSR 91-5p analysis); Udd v. Massanari, 245
F.3d 1096, 1100 (9th Cir. 2001) (same); Stieberger v. Apfel, 134
F.3d 37, 41 (2d Cir. 1997) (remanding with instruction to apply
substantial evidence standard in SSR 91-5p analysis); Shrader v.
Heckler, 754 F.2d 142, 144 (4th Cir. 1985) (applying substantial
evidence standard in SSR 91-5p analysis); Nerich, 2014 DNH 239,
11 n.7.
8

experiencing “memory changes” and “foggy brain,” the only mental
health condition that Dr. Moscola actually diagnosed was
depression.

See Tr. at 281.

In sum, nothing in the report

suggests that Langill’s mental health conditions significantly
impaired her understanding of the procedures for appealing her
denied claim in late 2009.

For purposes of SSR 91-5p, simply

identifying a mental health condition is not enough; a claimant
must also “present[] evidence that [the condition] prevented him
or her from timely requesting review” of a denied claim.

See

SSR 91-5p, 1991 WL 208067, at *2; Nerich, 2014 DNH 239, 13.

Dr.

Moscola’s report furnishes no such evidence and, therefore,
provides no basis to reopen under SSR 91-5p.
To substantiate her claim that she suffered from memory
problems that prevented her from appealing her claim in 2009,
Langill next points to her testimony before the ALJ during the
2012 hearing, where she told the ALJ that she was experiencing
short-term memory problems and difficulty in maintaining focus.
Tr. at 37, 40-41; see Doc. No. 11-1 at 7.

That Langill may have

experienced memory problems in 2012, however, does not establish
that a mental health condition prevented Langill from appealing
her claim three years earlier.

Langill’s testimony offers at
9

most a vague claim that she experienced depression at some point
in the past, Tr. at 35-36, but it contains no indication that
she experienced any mental limitation in late 2009 that
prevented her from appealing her claim.

See Tr. at 28-42.

Langill’s testimony, therefore, sheds no light on whether she
could understand how to seek further review of her claim when it
was denied in 2009.
Finally, I address Dr. Wagner’s 2012 retrospective opinion.
In his report, Dr. Wagner concluded that Langill suffered from a
number of serious mental health conditions, including depression
and anxiety and personality disorders.

Tr. at 401.

He also

determined that Langill had experienced these complications
since 2005.

Tr. at 389.

Although the ALJ gave significant

weight to Dr. Wagner’s evaluation of Langill’s present
impairments in 2012, he gave little weight to Dr. Wagner’s
retrospective opinion that those impairments had existed since
2005 because “Dr. Wagner did not examine or treat [Langill] at
that remote date.”

Tr. at 19.

There is no doubt, as the ALJ recognized in his decision,
that Langill presently suffers from serious mental health
conditions.

See Tr. at 17.

Nevertheless, the ALJ was entitled
10

to give Dr. Wagner’s retrospective opinion little weight for at
least two reasons.

First, Dr. Wagner examined Langill only one

time before rendering his opinion.
404.1527(c)(2)(i).

Tr. at 391; see 20 C.F.R. §

And second, he rendered his opinion in

October 2012, three years after the Commissioner denied
Langill’s 2009 claim and more than seven years after March 2005,
the onset date that Langill alleged and Dr. Wagner endorsed.
Tr. at 389, 391; see Evangelista v. Sec’y of Health and Human
Servs., 826 F.2d 136, 140 n. 3 (1st Cir. 1987) (utility of
retrospective opinion was “seriously curtailed” because it was
rendered four and one-half years after the relevant time
period); O’Dell v. Astrue, 736 F. Supp. 2d 378, 387 (D.N.H.
2010) (“Medical examinations conducted after the relevant injury
period are . . . of limited relevance in disability
determinations.”).
The report does discuss certain contemporaneous medical
records, including a 2004 depression diagnosis, a 2004 emergency
room visit that involved a possible suicide attempt, a 2009
hospital visit report that records “an element of depression”
and diagnoses of chronic pain syndrome and chronic sleep
deprivation, and and Dr. Moscola’s 2009 report.
11

Tr. at 397-98.

Although the incorporation of contemporaneous medical evidence
can sometimes bolster a retrospective opinion, the
contemporaneous records available to Dr. Moscola do not show
that Langill’s mental impairments in 2009 prevented her from
understanding how to appeal her claim.

See Marcotte v.

Callahan, 992 F. Supp. 485, 491 (D.N.H. 1997) (“Retrospective
diagnoses . . . may be considered only to the extent that such
opinions both substantiate a disability that existed during the
eligible period and are corroborated by evidence contemporaneous
with the eligible period.”).

The 2004 records have no bearing

on Langill’s mental limitations in 2009 because of their
remoteness from the relevant period, and as I have already
explained, Dr. Moscola’s report provides no evidence that
Langill could not understand how to appeal her claim in 2009.
The 2009 hospital visit report is even less helpful, since it
identifies only a potential “element of depression” and, judging
by Dr. Wagner’s synopsis, sheds no light on whether Langill’s
mental health impairment prevented her from appealing her claim
at that time.

See Tr. at 398.

These contemporaneous records,

therefore, do not overcome the limitations of Dr. Wagner’s
report as a retrospective opinion based on a single examination.
12

Langill points to no other basis for error in the ALJ’s decision
to give Dr. Wagner’s report little weight, and I can discern
none in the record.
Other items in the record suggest that any mental health
impairments that affected Langill when her claim was denied did
not prevent her from understanding how to appeal the denial.

As

the ALJ noted, Langill did not allege any mental health
conditions in her 2009 disability application.

Tr. at 15, 155;

see Dupont v. Astrue, 2010 DNH 214, 10-11 (affirming ALJ’s
refusal to reopen under SSR 91-5p based in part on claimant’s
omission of mental health condition in initial disability
application).

She denied experiencing depression during an

April 2009 medical visit, and the nurse practitioner who
conducted that examination noted that Langill presented with
“appropriate affect and demeanor,” “normal speech pattern,” and
“grossly normal memory.”

Tr. at 245-46.

In her August 2009

function report, Langill indicated that the disability she
claimed in her 2009 application had not affected her ability to
complete tasks, concentrate, understand, and follow
instructions.

See Tr. at 186.

Langill’s mother also completed

a function report assessing her daughter in August 2009, in
13

which she wrote that Langill followed instructions well and that
Langill’s ability to understand, follow instructions, complete
tasks, and concentrate had not been affected.

Tr. at 167-68.

Between this evidence and the fact that the records to which
Langill points provide no indication that a mental health
condition prevented her from seeking further review of her 2009
claim after it was denied, I conclude that substantial evidence
in this record supports the ALJ’s refusal to reopen Langill’s
2009 claim under SSR 91-5p.3

IV.

CONCLUSION

For these reasons, I grant the Commissioner’s motion to
3

Langill argues that it was error for the ALJ to consider
whether Langill’s parents were available and able to assist her
when her 2009 claim was denied. See Doc. No. 11-1 at 9-10. The
ALJ concluded, however, that “the record fails to show mental
incapacity [on Langill’s part] to understand the procedures for
requesting review.” Tr. at 15. As I have explained,
substantial evidence supports that decision. Under SSR 91-5p,
whether claimants “had [anyone] legally responsible for
prosecuting [a] claim” matters only if claimants also show that
mental incapacity prevented them from independently meeting the
deadline for appealing a denied claim. See SSR 91-5p, 1991 WL
208067, at *2. Because the ALJ’s finding that Langill has not
made this showing is supported by substantial evidence, my
inquiry ends there, and I need not address whether the ALJ’s
finding that Langill’s parents were available to assist her was
proper.
14

affirm her decision (Doc. No. 19) and deny Langill’s motion to
reverse (Doc. No. 11).

The clerk is directed to enter judgment

accordingly and close the case.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
February 20, 2015
cc:

Robert J. Rabuck, Esq.
D. Lance Tillinghast, Esq.

15