Mudgett v. US Social Security Administration, Commissioner

Filing 15

///ORDER denying 10 Motion to Reverse Decision of Commissioner; granting 11 Motion to Affirm Decision of Commissioner. The decision of the Acting Commissioner is affirmed. The clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Elizabeth Mudgett
v.

Civil No. 14-cv-143-JD
Opinion No. 2014 DNH 255

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Elizabeth Mudgett seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying her application for
supplemental security income benefits.

In support of reversing

the decision, Mudgett contends that the Administrative Law Judge
(“ALJ”) erred in failing to find appropriate limitations in the
mental residual functional capacity assessment.

The Acting

Commissioner moves to affirm.

Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s factual

findings as long as they are supported by substantial evidence.
§ 405(g).

“Substantial evidence is more than a scintilla.

It

means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.”

Astralis Condo. Ass’n v.

Sec’y Dep’t of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir.
2010).

Substantial evidence, however, “does not approach the

preponderance-of-the-evidence standard normally found in civil
cases.”

Truczinskas v. Dir., Office of Workers’ Compensation

Programs, 699 F. 3d 672, 677 (1st Cir. 2012).

Background
Mudgett filed an application for supplemental security
income benefits in July of 2011, when she was twenty-six years
old, alleging a disability since July of 2007, which was later
amended to July of 2011.

She claimed disabling impairments due

to the effects of depression, anxiety, bipolar disorder, posttraumatic stress disorder (“PTSD”), insomnia, and addiction.
Mudgett previously worked doing collections and in sales.
Although the joint statement of material facts does not
provide a detailed chronology of Mudgett’s criminal history, she
testified that she had a felony record.

Mudgett was arrested for

armed robbery when she was sixteen and for burglary when she was
seventeen and was incarcerated on more than one occasion after
that time.

Her medical records indicate that she was

incarcerated for at least part of the period between January of
2005 and March of 2011.
Mudgett was evaluated and treated for mental health issues
through October of 2012.

In general, the treatment notes

indicate that she had anxiety, suffered from depression, and
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sometimes had a flat mood and affect, but was oriented in three
spheres, denied suicidal ideation, and was assigned GAF scores in
the 60s.1

She attempted to work at times, but she apparently was

unable to sustain full-time work.
On August 30, 2011, Julianna Read, Ph.D. conducted a
psychological consultative examination of Mudgett.

Dr. Read

found that Mudgett met the criteria for PTSD, social anxiety
disorder, and major depressive disorder.

Mudgett was then

working part time in her father’s landscaping business and in
doing promotions for Lowe’s and Home Depot.

She was able to

drive, could handle her own finances, and helped with chores
around the house.

Mudgett reported that she had nightmares and

that she would forget to eat for days.
Dr. Read found that Mudgett was able to attend to all of her
daily activities but would not always carry through because of
exhaustion caused by anxiety and depression.

She also found that

Mudgett could interact and communicate appropriately although
with a general mistrust and high anxiety; she could understand
and remember material; she could maintain attention,
concentration, and her schedule; she could make simple decisions;
and she could interact appropriately with supervisors.
After her application for benefits was denied, a hearing
before an ALJ was held on October 2, 2012.

1

Mudgett testified

GAF is an abbreviation for Global Assessment Functioning, a
rating system of questionable reliability and significance. See
Hall v. Colvin, 18 F. Supp. 3d 144, 153 (D.R.I. 2014).
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that she could not work because of her moods, because she was
unable to sleep, and because she thinks other people are “either
tearing her apart or watching her.”

She did not think her

medications were helping her symptoms.

Mudgett testified that

she had not been capable of staying focused, functioning, or
working five days in a row since 2011.

At the hearing, Mudgett

and her counsel explained that she was about to enter a
residential treatment program for substance abuse.2
The ALJ issued her decision on January 17, 2013.

The ALJ

found that Mudgett had severe impairments due to PTSD, affective
disorder, and a history of substance abuse.

Because of those

impairments, the ALJ found that Mudgett was limited to doing
uncomplicated tasks, typical of those found in unskilled work.
The ALJ determined that Mudgett’s impairments had little or no
effect on her ability to do unskilled work, which directed a
finding that she was not disabled pursuant to 20 C.F.R. Part 404,
Subpart P, Appendix 2, Section 204.00.

The Appeals Council

denied Mudgett’s request for review.

2

Despite evidence that Mudgett had issues with substance
abuse, the ALJ did not make findings pertaining to the effect of
substance abuse on Mudgett’s claims of disability. See 42 U.S.C.
§ 423(d)(2)(C) (“An individual shall not be considered to be
disabled for purposes of [social security benefits] if alcoholism
or drug addiction would (but for this subparagraph) be a
contributing factor material to the Commissioner’s determination
that the individual is disabled.”); see also 20 C.F.R.
§ 416.935.
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Discussion
Mudgett moves to reverse the ALJ’s decision on the ground
that the ALJ erred in determining her residual functional
capacity which led to an erroneous conclusion that she is not
disabled.

Specifically, Mudgett argues that because the ALJ

found that she had moderate limitations in her ability to
maintain concentration, persistence, or pace, the ALJ was
required to find a corresponding functional limitation.

Mudgett

contends that the limitation to simple or unskilled work did not
satisfy that requirement and that the ALJ should have sought the
opinion of a vocational expert based on a hypothetical that
included all of her limitations.

The Acting Commissioner moves

to affirm the decision.
Disability, for purposes of social security benefits, is
“the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

20 C.F.R. § 416.905(a).

The ALJ follows a five-step

sequential analysis for determining whether a claimant is
disabled.

§ 416.920(a)(4).

The claimant bears the burden,

through the first four steps, of proving that his impairments
preclude him from working.
608 (1st Cir. 2001).

Freeman v. Barnhart, 274 F.3d 606,

At the fifth step, the Commissioner

determines whether other work that the claimant can do, despite
his impairments, exists in significant numbers in the national
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economy and must produce substantial evidence to support that
finding.

Seavey, 276 F.3d at 5.

An ALJ may rely on the Medical Vocational Guidelines
(“Grid”), provided at 20 C.F.R. Part 404, Subpart P, Appendix 2,
to determine whether a claimant is disabled at the fifth step of
the sequential analysis only when nonexertional impairments
“impose no significant restriction on the range of work a
claimant is exertionally able to perform.”

Quintana v. Comm’r of

Soc. Sec., F. App’x 142, 145 (1st Cir. 2004).

“As long as the

nonexertional impairment has the effect only of reducing the
occupational base marginally, the Grid remains highly relevant
and can be relied on exclusively to yield a finding as to
disability.”

Id. (internal quotation marks omitted).

Mudgett argues that her moderate impairment in maintaining
concentration, persistence, or pace was not addressed by the
ALJ’s residual functional capacity assessment.

She contends that

the limitation to unskilled work did not adequately convey the
restrictions imposed by moderate difficulty in concentration,
persistence, or pace.

As a result, she asserts, the ALJ erred in

relying on the Grid and should have presented all of her
limitations to a vocational expert.
In support, Mudgett relies on several cases in which the
court held that the ALJ erred by failing to include the
claimant’s moderate difficulties in maintaining concentration,
persistence, or pace in the hypothetical to the vocational
expert.

See Cohen v. Astrue, 851 F. Supp. 2d 277, 286 (D. Mass.
6

2012); Collins v. Astrue, 2010 WL 3245457 (M.D. Fla. Aug. 17,
2010); see also Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th
Cir. 2010) (concluding that similar moderate limitations were not
conveyed adequately through a limitation to unskilled work);
Viveiros v. Astrue, 2012 WL 603578, at *12 (D. Mass. Feb. 12,
2012).

The courts in those cases reasoned that moderate

difficulty in maintaining concentration, persistence, or pace is
a limitation that may affect the claimant’s ability to work,
which is not addressed by a limitation to low stress or unskilled
work.
On the other hand, however, “[a] finding of moderate
limitations in maintaining concentration, persistence, or pace,
does not necessarily preclude the performance of unskilled work.”
Perry v. Astrue, 2014 WL 4965910, at *6 (D. Mass. Sept. 30,
2014).

When an acceptable medical source provides an opinion

that despite moderate limitations in concentration, persistence,
or pace the claimant is able to do unskilled work or simple
routine work, no further restriction in residual functional
capacity is necessary.

Montore v. Astrue, 2012 WL 3583346, at *7

(D.N.H. Aug. 20, 2012); see also Falcon-Cartagena v. Comm’r of
Soc. Sec., 21 F. App’x 11, 14 (1st Cir. 2001) (concluding that a
moderate limitation in nonexertional functioning required for
unskilled work does “not affect, more than marginally, the
relevant occupational base”).
In this case, Dr. Read stated that, despite her limitations,
Mudgett was capable of maintaining attention and concentration,
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making simple decisions, interacting appropriately with
supervisors, and maintaining a schedule.

The ALJ relied on that

part of Dr. Read’s opinion in making the residual functional
capacity assessment that Mudgett was able to do unskilled work.
Based on Dr. Read’s opinion, Mudgett’s moderate limitations in
concentration, persistence, and pace do not affect her ability to
do unskilled work.

Therefore, the ALJ adequately accounted for

Mudgett’s limitations in the residual functional capacity
assessment and supportably relied on the Grid to conclude that
Mudgett was not disabled.

Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 10) is denied.

The Acting Commissioner’s motion to

affirm (document no. 11) is granted.
The decision of the Acting Commissioner is affirmed.

The

clerk of court shall enter judgment accordingly and close the
case.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 9, 2014
cc:

Karen B. Fitzmaurice, Esq.
Tamara N. Gallagher, Esq.
Robert J. Rabuck, Esq.

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