Sullivan v. SSA CV-96-378-SD 08/28/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dennis Sullivan

v. Civil No. 96-378-SD

Shirley S. Chater, Commissioner of Social Security Administration

O R D E R

Pursuant to section 20 5 (g) of the Social Security Act,

(g), plaintiff Dennis Sullivan seeks judicial review

of a final decision of the Secretary of Health and Human Services

denying his claims for disability insurance benefits. Presently

before the court are (1) plaintiff's motion to reverse the

Secretary's decision and (2) defendant's motion to affirm same.

Background

Claimant Dennis Sullivan is a 45-year-old male who filed an

application for disability insurance benefits in December 1993

claiming inability to engage in gainful employment due to

physical and mental impairments. His claim was denied initially

and upon reconsideration. Claimant was then granted a hearing

before an Administrative Law Judge (ALJ), at which he challenged

the denial of benefits. The ALJ also denied benefits on the ground that claimant was not disabled within the meaning of the

Social Security Act.

Discussion

The ultimate guestion in this case is whether Sullivan is

disabled within the meaning of

(d), which defines

"disability" as

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . [lasting at least a year and] of such severity that [the claimant] . . . is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for such work.

The ALJ found that Sullivan was not disabled. On review, this

finding is entitled to deference as long as it is supported by

substantial evidence,

(g), which is "such relevant

evidence as a reasonable mind might accept as adeguate to support

a conclusion." Richardson v. Perales,

(1971).

However, "[d]eference is not an absolute rule." Thompson v.

Sullivan,

(10th Cir. 1993). For the

following reasons, this court finds that the ALJ's finding is not

supported by substantial evidence.

The determination of whether an applicant is disabled

2 generally consists of a multi-step analysis that focuses first on

the nature and severity of claimant's impairment and second on

the availability of suitable work in light of the impairment.

Goodermote v. Secretary of Health and Human Servs.,

(1st Cir. 1982). However, Appendix 1 of the Social Security

regulations contains a specific list of impairments that are of a

degree of severity to be presumptively disabling without inguiry

into the availability of suitable work.

Appendix 1 contains

listings of mental disorders that are "so constructed that an

individual meeting the criteria cannot reasonably be expected to

engage in gainful work activity." 20 C.F.R. Pt. 404, Subpt. P,

A p p . 1, 12.00 Mental Disorders (1997). One of the categories of

mental disorder listings is Affective Disorders, 20 C.F.R. Pt.

404, Subpt. P, App. 1, 12.04, which are " [c]haracterized by a

disturbance of mood, accompanied by a full or partial manic or

depressive syndrome. Mood refers to a prolonged emotion that

colors the whole psychic life; it generally involves either

depression or elation." In order to gualify as having a Listing

12.04 disorder, a claimant must satisfy two sets of reguirements.

The "A." reguirements are satisfied by:

Medically documented persistence, either continuous or intermittent, of one of the following: 1. Depressive syndrome characterized by at least four of the following: a. Anhedonia or pervasive loss of interest

3 in almost all activities; or b. Appetite disturbance with change in weight; or c. Sleep disturbance; or d. Psychomotor agitation or retardation; or e. Decreased energy; or f. Feelings of guilt or worthlessness; or g. Difficulty concentrating or thinking; or h. Thoughts of suicide; or i. Hallucinations, delusions, or paranoid thinking; or 2. Manic syndrome characterized by at lest three of the following: a . Hyperactivity; or b . Pressure of speech; or c . Flight of ideas; or d . Inflated self-esteem; or e . Decreased need for sleep; or f . Easy distractability; or g. Involvement in activities that have a high probability of painful conseguences which are not recognized; or h. Hallucinations, delusions or paranoid thinking; or 3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes). . . .

The "B." reguirements are satisfied when those medically

documented symptoms result in at least two of the following:

1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Deficiencies of concentration, persistence or pace resulting in freguent failure to complete tasks in a timely manner (in work settings or elsewhere); or 4. Repeated episodes of deterioration or decompensation in work or work-like settings which

4 cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).

The ALJ found that Sullivan did not have a presumptively

disabling Affective Disorder as defined under Listing 12.04

because Sullivan's medically documented symptoms did not satisfy

the "B." reguirements. In reaching this conclusion, the ALJ

relied on a July 1994 report by Dr. James J. Adams, an examining

physician to whom claimant was referred by a Disability Claims

Adjudicator. According to the ALJ, Dr. Adams "found the claimant

to have good attention and concentration skills, attention to his

activities of daily living and appropriate social functions

within his own family which do not rise to the levels of severity

reguired by Listing 12.04." Tr. 24.

The ALJ's finding that Sullivan does not meet the "B."

reguirements for Listing 12.04 is not supported by substantial

evidence. First, claimant points to a mountain of evidence from

doctors' reports in the record which support the conclusion that

Sullivan does satisfy the "B." reguirements, contrary to the

ALJ's findings. Plaintiff's Memorandum in Support of Motion to

Reverse at 5-7. Generally, the sole guestion on appeal is

whether there is substantial evidence to support the ALJ's

conclusion, not whether there is evidence of the opposite

5 conclusion, and "resolution of the conflict within the medical

evidence in the present record is a matter for the Secretary to

determine." Lizotte v. Secretary of Health and Human Services,

(1st Cir. 1981). However, in this case, the

evidence supporting the conclusion that Sullivan does satisfy the

"B." requirements overshadows the slim reed of evidence

supporting the ALJ's conclusion. In support of reversal,

claimant cites several medical reports from physicians who have

treated him for his mental impairment since approximately 1982.

These reports appear consistent in their evaluation of claimant's

mental impairment and support the conclusion that he satisfies

the "B." requirements. These reports were on the record, and

"Social Security regulations require the Secretary to evaluate

every medical opinion received." Sapier v. Secretary of Health &

Human Servs., No. 94-352-SD, slip op. at 11 (D.N.H. May 11, 1995)

(citing

(d) (1994)). In addition, the

reports were prepared by treating physicians, and the Social

Security regulations require the Secretary to give more weight

to a claimant's treating sources

since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairments and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.

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(1997). Despite this, the ALJ did not even

address these reports, but instead was content to rely on one

report prepared by Dr. Adams, who was commissioned by a

Disability Claims Adjudicator to examine claimant. Since the ALJ

failed to consider a consistent body of medical reports from

claimant's treating physicians, as was required under

, this court finds that the ALJ's conclusion is not

supported by substantial evidence.

In addition, the ALJ misinterpreted the one medical report

he chose to consider--that of Dr. Adams--which, when properly

interpreted, does not support the ALJ's conclusions. The ALJ

claimed that Dr. Adams found the claimant to have attention to

his activities of daily living. The Regulations provide.

Activities of daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation . . . .

20 C.F.R. P t . 404. Subpt. P, App. 1, 12.00 Mental Disorders. The

only statement from Dr. Adams' report that relates to activities

of daily living notes that claimant "is able to drive and shop,

but does so when there is not likely to be a crowd at the grocery

store." Tr. at 990. This statement hardly reflects an

affirmative finding by Dr. Adams that Sullivan has attention to

activities of daily living.

Second, the ALJ claims that Dr. Adams found Sullivan to have

7 good attention and concentration skills. The Regulations state.

Concentration, persistence and pace refer to the ability to sustain focused attention sufficiently long to permit the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in terms of ability to complete tasks in everyday household routines. . . .

20 C.F.R. P t . 404, Subpt. P, App. 1, 12.00 Mental Disorders.

However, Dr. Adams' report states.

He does note that he currently has difficulty with being able to sustain focused attention and complete his everyday routines without resorting to family or lists to remind him to do certain tasks. He has noted a decreased tolerance of decision-making, consistency in following through with a task, and tolerance of stress or conflict in relation to task completion.

Tr. at990. It is a mystery how the ALJ could interpret this as

a finding that Sullivan has good attention and concentration

skills.

Third, the ALJ claims that Dr. Adams found Sullivan did not

have difficulty maintaining social functioning because Sullivan

maintained appropriate social functions within his own family.

The Regulations provide.

Social functioning . . . includes the ability to get along with others, e.g., family members, friends, neighbors, grocery clerks, landlords, bus drivers, etc. . . . "Marked" is not the number of areas in which social functioning is impaired, but the overall degree of interference in a particular area or combination of areas of functioning. . . . 20 C.F.R. P t . 404, Subpt. P, App. 1, 12.00 Mental Disorders. So,

contrary to the ALJ's assertion, appropriate social functioning

within his family is not inconsistent with a marked difficulty in

maintaining social functioning. In fact. Dr. Adams' report notes

that "Mr. Sullivan does not interact socially, except with his

family." Tr. 990. Dr. Adams' report further diagnoses Sullivan

with agoraphobia.

Clearly, Dr. Adams' report cannot be

interpreted as a finding that Sullivan maintains appropriate

social functioning.

For the following two reasons, this court reverses the ALJ's

findings and remands the case for further review. First, the

ALJ's failed to evaluate all the medical opinions presented to

him, as was reguired by

. This court has

previously observed

that the reguirements of

serve the dual purpose of ensuring (1) that the ALJ carefully considers all of the medical evidence before him and (2) that the ALJ's reasons for attributing more or less weight to certain medical opinions are well-documented, thereby permitting the ALJ's findings to be properly reviewed under the substantial evidence standard. This dual purpose is consistent with the general rule that "[t]he Secretary has an obligation both to claimants and to reviewing courts to make full and detailed findings in support of his ultimate conclusion." Small v. Califano,

(1st Cir. 1977) (citing, inter alia,

(b)) .

Saoier, supra, slip op. at 18-19. On remand, the ALJ shall evaluate all of the medical

opinions presented to him, not just that of Dr. Adams. If the

ALJ determines that any of the medical opinions of plaintiff's

treating physicians are not entitled to controlling weight, his

explanation for such determinations shall meet the reguirements

of

(d).

Second, the one report the ALJ did evaluate does not support

the ALJ's conclusion that Sullivan does not satisfy the "B."

reguirements.

Conclusion

As set forth herein, the Secretary's disability

determination is reversed and this case is remanded for a

redetermination of plaintiff's eligibility for disability

insurance benefits in accordance with the provisions of this

order. Plaintiff's motion to reverse the Secretary's decision is

accordingly granted, and defendant's motion to affirm the

Secretary's decision is denied. The clerk shall enter judgment.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

August 28, 1997

cc: Robert E. Raiche, Esg. David L. Broderick, Esg.

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