Kulsic v. SSA

2015 DNH 031

• Court: District Court, D. New Hampshire
• Decided: February 20, 2015
• Docket: CV-14-34-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Amy Lynne Kulsic

v. Civil No. 14-cv-34-JL Opinion No. 2015 DNH 031

Carolyn W. Colvyn, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Amy Lynne Kulsic has appealed the Social Security

Administration’s denial of her application for a period of

disability and disability insurance benefits, which claimed an

onset date of June 2005. An administrative law judge at the SSA

(“ALJ”) ruled that, despite Kulsic’s severe impairments

(including obesity, sleep apnea, depression, anxiety, stress

disorder, bipolar disorder, and attention deficit hyperactivity

disorder), 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). The Appeals Council later denied Kulsic’s request

for review, see id. § 404.968(a), with the result that the ALJ’s

decision became the final decision on Kulsic’s application, see

id. § 404.981. Kulsic appealed the decision to this court, which

has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

Kulsic has filed a motion to reverse the decision. See L.R.

9.1(b)(1). She argues that, in determining her RFC, the ALJ erred by (1) finding her allegations of disabling symptoms to be

less than fully credible and (2) ignoring evidence in her medical

records, including the opinions of a psychiatric nurse

practitioner who had briefly treated Kulsic. The Acting

Commissioner of the SSA has cross-moved for an order affirming

the ALJ’s decision, see L.R. 9.1(d), arguing that substantial

evidence supported the ALJ’s RFC determination and that he

adequately addressed any contrary medical evidence. For the

reasons explained fully below, the court agrees with the

Commissioner, and therefore grants her motion to affirm (and

denies Kulsic’s motion to reverse) the ALJ’s decision.

Credibility. At the hearing before the ALJ, Kulsic

testified to symptoms of her psychological impairments, including

(as her testimony is summarized in the joint statement of facts)

that “she had more bad days than good”--indeed, she was then

having “five bad days a week.” Kulsic explained that “on bad

days she did not even get off the couch” and “her husband stayed

home to help her.” Kulsic testified, in fact, that she had been

unable to cook or to fold laundry or wash dishes in a timely

manner. Kulsic further related that “she did not like leaving

the house because it made her anxious, and leaving the house was

the primary cause of her anxiety,” also describing “paranoia

2 . . . that someone was going to come in the house and kill her or

hurt her family.” Kulsic also testified to trouble

concentrating, having “given up on reading books” in favor of

“magazines with pictures,” and that “she did not even read her

son’s school work because it was too long” (her son, at that

point, was in kindergarten).

The ALJ found that, while Kulsic’s “medically determinable

impairments could reasonably be expected to cause some of [her]

alleged symptoms,” her “statements concerning the intensity,

persistence, and limiting effects of these symptoms are not

credible.” Specifically, the ALJ found that, “[a]fter assessing

the combined impact of [Kulsic’s] obesity and [sleep apnea] with

her mental impairments, . . . [she] would be capable of

performing low-level semiskilled work in a low stress

environment, as long as she has only occasional contact with the

public and with co-workers” (parenthetical omitted).

In explaining this conclusion--which the ALJ proceeded to do

over the next four-plus single-spaced pages of his written

decision--the ALJ relied on several factors, a non-exhaustive

summary of which follows. First, the ALJ noted that Kulsic had

been able to perform what she described as the “highly stressful”

job of network analyst for Comcast from 2000 until 2004 (aside

from a period of short-term disability between August and

3 December 2000), despite receiving treatment for psychological

symptoms that were “very similar” to those she described as her

present problems at the time of the hearing. Second, the ALJ

noted that Kulsic’s mental status examinations between 2006 and

2010 on the whole reflected symptoms less severe than the ones

she described at the hearing, including: a two-year period

(2006-2007) where “the majority of her mental status examinations

displayed . . . normal concentration”; another period (April

2009-August 2009) when she “seemed to be doing reasonably well,

with a stable mood and only mild depression”; and the first half

of 2010, when (aside from “some periods where [her] symptoms

deteriorate”) her mental status examinations were “within normal

limits” or showed “few significant abnormalities.” Third, the

ALJ observed that, after reporting that she felt “the best she

has felt in a long time” in June and July 2010, Kulsic “engaged

in no documented psychiatric treatment at all between July 2010

and January 2011,” and (following “prolonged manic and depressive

periods” later that year) “little documented psychiatric

treatment after August 2011 until May 2012,” when she “resumed

taking psychiatric medications” and “displayed a more stable

mood, less depression, and felt pretty good.”

Fourth, the ALJ relied on records of Kulsic’s sessions with

her counselors reporting that, in early spring 2012, she began

4 work “organizing showings of products” by throwing “‘passion

parties’ out of her home” at the rate of “approximately one

‘passion party’ per week”--a job that also required her to travel

to Las Vegas in or around March of that year.1 In the ALJ’s

view, evidence of Kulsic’s carrying out these activities “at

precisely the time that she alleges her symptoms reached their

peak dramatically reduces the credibility of her alleged social

limitations” as well as her “alleged difficulties with memory and

her alleged inability to focus and concentrate.” Fifth, the ALJ

relied on a function report that Kulsic completed in which--in

contrast to her testimony at the hearing--“she stated that she

prepares meals daily, did the laundry once per week and performed

cleaning activities as needed.”

As the Court of Appeals has instructed, “[i]t is the

responsibility of the [ALJ] to determine issues of credibility

and to draw inferences from the record evidence,” so long as “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 HHS, 955 F.2d 765, 769 (1st Cir. 1991)

(quotation marks omitted). In attacking the ALJ’s finding that

her account of disabling psychological problems was not fully

1 While the ALJ’s decision was not more specific on this point, the record shows that the products that Kulsic hawked at these parties were sex toys.

5 credible, Kulsic does not address the record as a whole, or, for

that matter, the bulk of the ALJ’s detailed reasoning.

Instead, Kulsic faults the ALJ for relying on “some activity

in 2012,” namely, her work as a consultant showing products at

the “passion parties” in her home. As Kulsic points out, there

is no evidence as to how long she went on hosting these events

and, in any event, a claimant’s ability to do part-time work is

not evidence that she can work full time despite her impairments.

See, e.g., Mason v. Astrue, 2013 DNH 013, 14 (quoting Teixeira v.

Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010)).

Nevertheless, “evidence of daily activities can support a

negative credibility finding,” id., which is just how the ALJ saw

the evidence of Kulsic’s part-time work here (specifically

relying on the fact, as just discussed, that she was engaged in

those activities “precisely the time that she alleges her

symptoms reached their peak”).2 Kulsic also asserts that the ALJ

2 This observation also addresses Kulsic’s suggestion that considering her activities in 2012 was error because “the ALJ was supposed to be considering the period of time between the alleged onset date in 2005 and the date last insured in 2011.” Since Kulsic claimed her symptoms had worsened in 2012, it was entirely appropriate to assess her credibility by looking to evidence of contradictory activities around the same time. In any event, “evidence generated after a claimant’s insured status expires may be considered for what light (if any) it sheds on the question of whether [the] claimant’s impairments reached disabling severity before [her] insured status expired.” Moret Rivera v. Sec’y of HHS, 19 F.3d 1427 (table), 1994 WL 107870, at *5 (1st Cir. Mar. 23, 1994).

6 “fails to address the fact that these activities were performed

during a ‘manic period,’” but that is not reflected in the

providers’ notes documenting these activities, nor anywhere else

in the record that Kulsic identifies. Again, it was up to the

ALJ to decide what inference to draw about Kulsic’s credibility

from the evidence of her part-time work activities that involved

hosting a weekly party at her house for the purpose of selling

sex toys (which, as the ALJ noted, “requires an ability to

maintain a schedule, interpret at least simple information, and

keep track of information”--to say nothing of regularly

interacting with groups of people about a potentially taboo

subject to persuade them to make purchases) as contrasted with

her testimony to suffering from crippling depression, isolating

anxiety, and a complete inability to concentrate during that same

period. See Irlanda Ortiz, 955 F.2d at 769.

The same is true of the function report, in which, as

discussed above, Kulsic reported daily activities exceeding those

she described in her testimony at the hearing. Kulsic offers

that, given her claim to difficulty in concentrating well enough

to read (indeed, she testified that she could not even make it

through her kindergartner’s schoolwork), “a rational conclusion

could be reached” that her responses on the report reflect

inattention or misunderstanding. But that is not the only

7 “rational conclusion” and, again, whether to view the report as

contradicting Kulsic’s testimony or to disregard it as a mistake

was up to the ALJ. See Scanlon v. Astrue, 2013 DNH 088, 14-15

(noting the ALJ’s prerogative as to how to treat the claimant’s

prior statements reflecting less severe symptoms).

While Kulsic also criticizes the ALJ for not asking her to

explain the inconsistencies between the report and her testimony

at the hearing itself, that criticism is not well-taken, since

Kulsic was represented at the hearing by counsel who, by all

rights, ought to have been the one ensuring her client had the

chance to explain her damaging prior statements. See Faria v.

Comm’r of Soc. Sec., 187 F.3d 621 (table), 1998 WL 1085810, at *1

(1st Cir. Oct. 2, 1998). In any event, even if Kulsic’s

criticisms of the ALJ’s reliance on the function report--or, for

that matter, Kulsic’s work as a “passion party” hostess--had some

force, the fact remains that, as already discussed, those were

but two of a number of pieces of evidence on which the ALJ relied

in deeming Kulsic’s testimony as to disabling symptoms less than

fully credible. Kulsic’s motion to reverse does not address that

other evidence, which is itself sufficient to support the ALJ’s

adverse credibility determination.

Medical evidence. Kulsic further argues that the ALJ erred

by ignoring certain entries from her medical records which, on

8 her interpretation, “support that she has severe mental and

nonexertional impairments, in addition to marked and severe

restrictions, very low GAF [i.e., global assessment functioning]

scores, and that she is unable to work.” This argument, however,

consists merely of a list with a brief description of each of

those entries, without explaining how they undercut the ALJ’s

findings. As this court has cautioned, “simply referring to

evidence before the ALJ is not enough to raise an argument that

the ALJ erred in his or her consideration of that evidence.”

Gaudette ex rel. D.P. v. Colvin, 2014 DNH 022, 4 n.1.

Nevertheless, a few observations are in order. First,

insofar as the entries show that Kulsic “has severe mental and

nonexertional impairments,” they are in fact consistent with the

ALJ’s findings, which included that Kulsic suffers from a number

of such impairments. Of course, the fact that Kulsic has a

severe impairment does not mean that the impairment is disabling,

see Eaton v. Astrue, 2009 DNH 102, 20 (citing Foster v. Bowen,

853 F.2d 483, 488-89 (6th Cir. 1988)), and (aside from one entry

discussed in more detail infra) Kulsic does not claim that any of

the entries came to that additional conclusion.3 Second, insofar

3 Kulsic’s motion also refers to a “Functional Capacities Evaluation” finding a number of moderately severe or severe restrictions on her mental or emotional functioning. But, while she provides a record citation for this document, her motion does not describe it more specifically (including by identifying its

9 as the entries show “very low GAF scores,” this court has noted

that “there is no ‘statutory, regulatory, or other authority

requiring the ALJ to put stock in a GAF score in the first

place.’” Chapin v. Astrue, 2012 DNH 177, 14 (quoting Kornecky v.

Comm’r of SSA, 167 Fed. App’x 496, 511 (6th Cir. 2006)).

Third, while one of the entries is a “medical source

statement of ability to do work-related activities (mental)” form

completed in September 2012 by Emily Weston, a psychiatric nurse

practitioner who had begun treating Kulsic in May 2012,

identifying certain marked limitations at odds with the ALJ’s RFC

finding, the ALJ expressly gave Weston’s opinions “little

weight.” Specifically, the ALJ noted Weston’s conclusions that

Kulsic “had a marked restriction in her ability to respond

appropriately to usual work situations and changes in a routine

work setting,” as well as that her “anxiety, inability to focus,

source) or develop any argument as to why the ALJ should have credited its findings, so any claim based on his failure to consider the “Functional Capacities Evaluation” is waived. See, e.g., Gaudette, 2014 DNH 022, 5 (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). It should be noted, though, that the evaluation (completed by a nurse practitioner) dates back to August 2002, nearly 3 years prior to Kulsic’s claimed onset date--and during a time when, as already discussed, she was working full-time in a “highly stressful” job despite the many limitations identified in the “Functional Capacities Evaluation.” The ALJ’s failure to specifically address this record in his decision, then, does not undermine the validity of his conclusion. See Rodriguez v. Sec’y of HHS, 915 F.2d 1557 (table), 1990 WL 152336, at *2 (1st Cir. Sept. 11, 1990).

10 inability to communicate effectively, and [] depression would

make it impossible for her to work,” but observed that “this is

inconsistent with the overall weight of the evidence of record.”

The ALJ elaborated that, right around the time Weston rendered

this opinion, Kulsic “began hosting passion parties and traveled

to Las Vegas, which are both activities requiring [her] to

respond to changes in her surroundings and deal appropriately

with varied situations,” as well as that “Weston’s own treatment

notes from August and September 2012 indicate significant

improvement in [Kulsic’s] symptoms inconsistent with finding

marked limitations in functioning.” Kulsic’s motion does not

address this reasoning, which provides an ample explanation for

the ALJ’s decision to give little weight to the opinions of her

treating nurse practitioner. See, e.g., Allard v. Colvin, 2014

DNH 034, 10-12.

Because the ALJ’s decision to find Kulsic’s claimed symptoms

less than fully credible was supported by substantial evidence,

and because he adequately explained his decision to give little

weight to Weston’s opinions (and Kulsic fails to adequately

develop her argument that the ALJ failed to address other medical

evidence), her motion to reverse the ALJ’s decision4 is DENIED,

4 Document no. 7.

11 and the Commissioner motion to affirm it3 is GRANTED. The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: February 20, 2015

cc: Christine Woodman Casa, Esq. T. David Plourde, AUSA

3 Document no. 10.