UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Mudgett

v. Civil No. 14-cv-143-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Elizabeth Mudgett seeks judicial review, pursuant to

(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,

(1st Cir. 1999); accord Seavey v. Barnhart,

(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.,

(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,

(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, post-

traumatic 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

2 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. Mudgett testified

1 GAF is an abbreviation for Global Assessment Functioning, a rating system of questionable reliability and significance. See Hall v. Colvin,

(D.R.I. 2014).

3 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

(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

.

4 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.”

(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. Freeman v. Barnhart,

(1st Cir. 2001). 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

5 economy and must produce substantial evidence to support that

finding. Seavey,

.

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.”

(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,

(D. Mass.

6 2012); Collins v. Astrue,

(M.D. Fla. Aug. 17,

2010); see also Ealy v. Comm’r of Soc. Sec.,

(6th

Cir. 2010) (concluding that similar moderate limitations were not

conveyed adequately through a limitation to unskilled work);

Viveiros v. Astrue,

, 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,

, 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,

, at *7

(D.N.H. Aug. 20, 2012); see also Falcon-Cartagena v. Comm’r of

Soc. Sec.,

(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,

7 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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