UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gail Margaret McCarthy

v. Civil No. 18-cv-240-JD Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Gail Margaret McCarthy seeks judicial review, pursuant to

(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,

(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 of evidence” but less than a preponderance. Purdy v.

Berryhill,

(1st Cir. 2018). 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.,

(1st Cir.

1991) (internal quotation marks omitted); accord Purdy,

.

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

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”.

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.” Six

months later, Dr. Duxbury wrote on the Mental Health

3 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

4 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.

. The claimant bears

the burden through the first four steps of proving that her

impairments preclude her from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the

claimant can do. Heggarty v. Sullivan,

(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

5 medically acceptable clinical and laboratory diagnostic

techniques.”

. 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.”

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

6 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.”

(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.

7 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 non-

examining 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. The

8 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

(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.

9 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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