Duguay v. SSA

2014 DNH 207

• Court: District Court, D. New Hampshire
• Decided: September 30, 2014
• Docket: CV-13-273-JL
• Status: Published

Opinion

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. See L.R.

9.1(b). 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). For the reasons explained

1 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. See Syms v. Astrue,

3 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.” 20 C.F.R. § 404.1545(e); see also

id. § 416.923. 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. Sullivan v. Zebley, 493 U.S. 521,

530-31 (1990). 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 “over- consideration” 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.” As

discussed in more detail infra, one of those consultants was

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. This was sufficient

6 evidence to support the ALJ’s identical findings.4 See Gaudette

ex rel. D.P. v. Colvin, 2014 DNH 022, 3-4. 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. The ALJ,

8 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

9 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

10 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, non-

examining” 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.’” Id. (quoting

Tremblay, 676 F.2d at 12). 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.

11 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: September 30, 2014

cc: Janine Gawryl, Esq. Robert J. Rabuck, AUSA