McCarthy v. US Social Security Administration, Commissioner

Filing 15

///ORDER denying 10 Motion to Reverse Decision of Commissioner; granting 13 Motion to Affirm Decision of Commissioner. 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
Gail Margaret McCarthy
v.

Civil No. 18-cv-240-JD
Opinion No. 2018 DNH 197

Nancy A. Berryhill, Acting
Commissioner, Social Security
Administration

O R D E R
Gail Margaret McCarthy seeks judicial review, pursuant to
42 U.S.C. § 405(g), of the Acting Commissioner’s decision
denying her application for disability insurance benefits.

In

support, McCarthy contends that the Administrative Law Judge
(“ALJ”) erroneously found that she did not have medically
determinable mental impairments, erred in failing to find
limitations related to diverticulitis, and made a flawed
credibility finding.

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 of evidence” but less than a preponderance.
Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

Purdy v.

The court must

affirm the ALJ’s findings, even if the record could support a
different conclusion, as long as “a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adequate to support [the ALJ’s] conclusion.”

Irlanda Ortiz v.

Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (internal quotation marks omitted); accord Purdy, 887 F.3d
at 13.
Background
McCarthy applied for social security benefits in October of
2015, alleging that she became disabled on February 28, 2014,
when she was sixty-one years old.

She alleged disability

because of diabetes, neuropathy, hypertension, diverticulitis,
an open wound in her abdomen, arthritis, and a bulging disc in
her back.1

McCarthy did not list any mental condition that limited
her ability to work in her Disability Report or her Function
Report although she indicated in the Disability Report that she
had been treated for depression and anxiety. In the Function
Report, she wrote that pain limited some of her functional
ability and stated that she could pay attention for ten to
twenty minutes and follow instructions “okay”.
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2

Before her alleged disability, McCarthy had worked from
1970 through 2014, except for one year.

She previously worked

as an accounting clerk and a payroll clerk.
Her medical history shows abdominal surgeries beginning
with diverticulitis in 2010 that resulted in a persistent open
wound.

McCarthy was also treated for depression by her primary

care physician, Dr. Melissa Duxbury.
A state agency physician, Dr. Abraham Colb, reviewed
McCarthy’s records in May of 2016.

Dr. Colb determined that her

gastrointestinal disorders, including the wound and
diverticulitis, were not severe.

He found that she could do

work at the light exertional level and occasionally do postural
activities.
Dr. Duxbury completed a Mental Health Questionnaire on
January 31, 2017, that was based on a Patient Health
Questionnaire, PHQ-9, and a Generalized Anxiety Disorder 7 Item
Assessment, GAD-7, which were completed in August of 2016.
During her examination in August of 2016 when the mental health
tests were done, Dr. Duxbury noted that McCarthy was “alert and
cooperative; normal mood and affect; normal attention span and
concentration.”

Dr. Duxbury wrote with respect to McCarthy’s

depression that she was “doing well” and that her depression had
“been stable for a number of years on the medication.”
months later, Dr. Duxbury wrote on the Mental Health
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Six

Questionnaire that McCarthy had moderate to marked deficiencies
in concentration and persistence or pace that would result in
failure to complete tasks in a timely manner and marked episodes
of deterioration or decompensation in work settings that would
cause McCarthy to withdraw from the situation.
A hearing was held before an ALJ in April of 2017.
McCarthy was represented by an attorney at the hearing.

She

testified that the complications following her diverticulitis
surgery that resulted in a persistent open wound caused her to
stop working.

She also testified in response to her attorney’s

question about “difficulties on the mental side” that she had “a
lot of mental issues with the fact that I still have an open
wound in my abdomen that still secretes stuff.”

Her testimony,

however, focused on physical pain from the wound and her back.
She also testified that she was taking Cymbalta for depression.
The ALJ found that McCarthy had the residual functional
capacity to do work at the light exertional level, with a
limitation of standing, walking, and sitting for no more than
six hours, and a limitation to occasional postural activities.
Based on the vocational expert’s testimony, the ALJ found that
McCarthy could return to her former work as an accounting clerk
and a payroll clerk.

For that reason, the ALJ found that

McCarthy was not disabled.

The Appeals Council denied

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McCarthy’s request for review, making the ALJ’s decision the
final decision of the Acting Commissioner.
Discussion
McCarthy contends that the decision must be reversed
because the ALJ erred at Step Two in finding that she did not
have a medically determinable severe mental impairment, failed
to include a limitation based on diverticulitis, and improperly
assessed her credibility.

The Acting Commissioner moves to

affirm.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis.

20 C.F.R. § 404.1520.

The claimant bears

the burden through the first four steps of proving that her
impairments preclude her from working.
F.3d 606, 608 (1st Cir. 2001).

Freeman v. Barnhart, 274

At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the
claimant can do.

Heggarty v. Sullivan, 947 F.2d 990, 995 (1st

Cir. 1991).
A.

Mental Impairment – Step Two
McCarthy contends that the ALJ erred in failing to find a

medically determinable mental impairment at Step Two.

To be

medically determinable, a severe mental impairment “must result
from . . . psychological abnormalities that can be shown by
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medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1521.

That is, a “mental

impairment must be established by objective medical evidence
from an acceptable medical source” but cannot be established by
the claimant’s “statement of symptoms, a diagnosis, or a medical
opinion.”

Id.

In the Step Two analysis, the ALJ stated that “[t]he
claimant’s physical provider, Melissa Duxbury, MD has submitted
an opinion related to the claimant’s mental health that has not
been considered as Dr. Duxbury is not a mental health
specialist.”

Admin. Rec. at 13.

He further stated that because

“the only diagnosis of any mental health condition was made by a
provider that does not specialize in mental health care, the
undersigned finds that this condition is non-medically
determinable.”

The Acting Commissioner acknowledges that the

ALJ was wrong to disregard Dr. Duxbury’s opinion because she was
not a mental health specialist.

The Acting Commissioner argues,

however, that the ALJ‘s error was harmless because the ALJ also
provided other reasons for not crediting Dr. Duxbury’s opinion.
Specifically, the ALJ noted that McCarthy did not allege
any mental health impairments in her application.

The ALJ also

noted that, contrary to her opinion, Dr. Duxbury recorded in her
treatment notes that McCarthy had a normal mood and affect, and
normal attention span and concentration and that the record
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showed that McCarthy’s depression had been stable for a number
of years.
“Medical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of
your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.”

20 C.F.R. § 404.1527(a)(1).

Medical opinions are evaluated based upon the nature of the
medical source’s relationship with the claimant, the extent to
which the source provides evidence to support the opinion, the
extent the opinion is consistent with other evidence in the
record, the specialization of the medical source, and other
factors including the understanding the source has of the social
security system.

§ 404.1527(c).

The court agrees that the ALJ erred in dismissing Dr.
Duxbury’s opinion based on her specialty.

Nevertheless, as the

ALJ also noted, Dr. Duxbury’s other medical evidence did not
support the severity of mental impairment that she indicated in
the Questionnaire.

Therefore, despite the error, it was

appropriate for the ALJ not to rely on Dr. Duxbury’s opinion as
to the severity of mental impairment and to find, instead, that
McCarthy did not have a medically determinable severe mental
impairment.

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B.

Diverticulitis – Residual Functional Capacity
At Step Two, the ALJ found severe impairments of

degenerative disk disease and obesity and non-severe impairments
of diverticulitis and diabetes mellitus.

The ALJ noted that the

record showed McCarthy had a history of surgical repair of
diverticulitis but did not establish any work-related
limitations associated with diverticulitis that were not covered
by the limitations caused by disk disease and obesity.

McCarthy

contends that the ALJ erred because he did not discuss the open
wound in her abdomen and did not find limitations related to her
diverticulitis.
McCarthy did not submit any physical functional capacity
assessment or any other objective evidence to show that
diverticulitis and her wound caused functional limitations.

As

a result, the only assessment in the record was done by a nonexamining state agency physician, Dr. Colb, in May of 2016.

Dr.

Colb considered McCarthy’s diverticulitis, her surgical history,
and her description of the open abdominal wound.

He found that

the diverticulitis and related condition were not severe.
Therefore, substantial evidence in the record supported the
ALJ’s finding at Step Two.
In addition, Dr. Colb assessed that McCarthy had a residual
functional capacity to do work at the light exertional level
with limitations on her ability to do postural activities.
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The

ALJ relied on Dr. Colb’s assessment in making his own residual
functional capacity assessment.

The ALJ also noted that despite

her various impairments McCarthy had no trouble in her
activities of daily living, which included trips to Ireland and
Paris.

As a result, McCarthy has not shown that the ALJ erred

in assessing her residual functional capacity.
C.

Credibility Assessment
McCarthy also contends that the ALJ erred in assessing her

credibility because he did not acknowledge her strong work
history.

Although McCarthy, who is represented by counsel,

states generally that “agency policy” in 20 C.F.R. §
404.1529(c)(3) and SSR 16-3p require consideration of a
claimant’s work history, no such requirement is apparent.
Nevertheless, to the extent consideration of a claimant’s work
history is either necessary or recommended, no error occurred
here.
McCarthy testified about her work history.

The ALJ

acknowledged that McCarthy “testified that she had a steady work
history but around 2010 suddenly lost all of her stamina after a
series of surgeries.”

Admin. Rec. at 15.

Therefore, McCarthy

has not shown error based on a failure to consider her work
history.

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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. 13) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 4, 2018
cc:

Amy C. Bland, Esq.
Daniel W. McKenna, Esq.
Karl E. Osterhout, Esq.

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