Marcotte, Jr. v. SSA CV-96-308-M 09/30/97 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Marcotte, Jr.

v. Civil No. 96-308-M

John J. Callahan, Commissioner Social Security Administration1

O R D E R

Plaintiff Robert Marcotte appeals, pursuant to

0 5 (g), the decision of the Commissioner denying him social

security benefits. The Commissioner's decision follows a

previous remand of this case to consider whether Marcotte's

claimed mental impairment, with his physical impairments,

rendered him disabled from work. For the reasons that follow,

the Commissioner's decision is again reversed and remanded.

Background

Local Rule 9.1 reguires parties in a social security case to

file a joint statement of material facts that includes "all facts

1 The President appointed John J. Callahan as Acting Commissioner of Social Security, effective March 1, 1997, to succeed Shirley S. Chater. Pursuant to Fed. R. Civ. P. 2 5 ( d ) (1), John J. Callahan is thus substituted for Shirley S. Chater as the defendant in this action. pertinent to the decision of the case and all significant

procedural developments, and define[s] all medical terms." LR

9.1(b)(2). In this case, the claimant seeks benefits for the

period from October 17, 1987, through December 1992. The

parties' joint statement of material facts, however, does not

include the period between 1980 and 1993. Instead, the parties

state that they rely on their separate factual statements from

their individual memoranda submitted in June 1994 in a previous

appeal to this court.2 The parties have not filed those

memoranda in this case. In addition, their separate memoranda,

even if they were available, would not fulfill the reguirements

of Local Rule 9.1, nor, apparently, would their factual

statements be helpful.3 Ordinarily, the parties' pleadings would

be returned and they would be directed to comply with the

reguirements of the local rule. Because of the protracted

history of this case, however, the court will instead primarily

rely on the factual background provided in the previous decision.

2 The Magistrate Judge recommended that the decision denying benefits be reversed and remanded in a report and recommendation dated July 14, 1994. The report and recommendation was approved on August 8, 1994.

3 In his report and recommendation, the Magistrate Judge described the parties' factual statements in their memoranda as "an unintelligible and confused recitation of plaintiff's medical history, . . . those facts are largely irrelevant to the issue before the court."

2 augmented by the parties' present factual statement and the

record.

Marcotte first applied for benefits in December 1987 based

on a back injury. He did not appeal the unfavorable decision in

February 1989 denying him benefits. Marcotte again applied for

benefits in April 1992 alleging an inability to work beginning in

1987 due to a back condition. During the hearing before the

Administrative Law Judge ("ALJ") on May 4, 1993, the testimony

indicated that Marcotte had suffered from panic attacks since

1972, and as a result, the ALJ suspended the proceedings to allow

Marcotte, who was represented by counsel, to submit evidence

pertaining to a possible mental impairment. The hearing resumed

on July 13, 1993. Little additional evidence or testimony of

mental impairment was offered.

The ALJ ruled in 1993 that the 1989 negative decision barred

Marcotte's application for the period between 1987 and 1989, and

also determined that he was not disabled from work during the

applicable period, February 1989 through December 1992, by either

his physical or mental conditions. Marcotte appealed the

decision arguing that the ALJ failed to properly assess his

mental impairment and improperly limited the period of his

claimed disability. The court found that the record was

insufficient to determine whether Marcotte's mental impairment,

3 combined with his exertional limitation, was disabling during the

applicable period. The court also ruled that Marcotte's claim

for benefits based on mental impairment presented a new claim

that was not barred by the previous denial, so that the

applicable period began in October 1987. Accordingly, the

Commissioner's decision was reversed, and the case was remanded

to determine:

1) how work-related stress affects plaintiff's RFC in light of his panic attacks, 2) whether plaintiff's panic attacks preclude him from leaving his restrictive lifestyle and 3) the synergetic effect of alcohol and Ativan on plaintiff's RFC.

Marcotte v. Secretary of Health and Human Servs., No. 94-19-SD,

Report and Recommendation at 15, (D.N.H. July 14, 1994), adopted

(D.N.H. Aug. 8, 1994) .

Upon remand, the ALJ obtained a copy of a consultative

examination report by Dr. Edward G. Martin, a clinical

psychologist, who met with Marcotte in May 1995 and had also

treated him in 1985. Dr. Martin's report, prepared for the New

Hampshire Vocational Rehabilitation Division, presented

Marcotte's psychological profile developed through observation,

interview, and a mental status examination during the May 1995

meeting. Dr. Martin noted Marcotte's anxiety and panic disorder

(for which he took the anti-anxiety medication Ativan), his

alcohol abuse, and his ongoing treatment at the White Mountain

4 Mental Health Clinic. He evaluated Marcotte's mental functioning

on the Global Assessment of Functioning (GAF) scale as 45 for the

six months preceding the May interview. A GAF score of 45

indicates serious symptoms or impairment in social or

occupational functions.4 Dr. Martin estimated that Marcotte had

average intelligence and did not find that he was particularly

anxious during the interview. Based on Marcotte's description of

his life and symptoms. Dr. Martin concluded that Marcotte's

twenty year history of panic attacks and agoraphobia combined

with a "long-standing history" of alcohol abuse had caused him to

be "nearly housebound" and that "[i]t is difficult to imagine him

becoming employable."

At the reguest of Marcotte's attorney. Dr. Martin completed

a mental impairment guestionnaire in July 1995. He found that

Marcotte's mental impairments caused a moderate restriction of

4 Lower GAF scores signify more serious symptoms. Scores between 31 and 40 indicate "'major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work),'" scores between 41 and 50 indicate "'serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job),'" and scores between 51 and 60 indicate "'moderate symptoms (e.g. flat effect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with co-workers.'" Sousa v. Chater,

, 1319 n.7, 1320 n.8, 1322 n.9 (E.D. Gal. 1996) (guoting Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association, p . 12 (3d ed. 1987)).

5 daily living activities, a marked limitation in social

functioning, freguent deficiencies of concentration and work

pace, and repeated episodes of deterioration in work settings

that would cause him to withdraw from the work situation. In a

letter to Marcotte's attorney. Dr. Martin explained that his 1995

evaluation of Marcotte was consistent with his diagnosis in 1985

of anxiety with panic attacks. He noted that while alcohol abuse

was not addressed in 1985, he nevertheless found that alcohol

abuse had been a serious problem "over the last few years" prior

to 1995. He also noted that Marcotte's physician. Dr. Felgate,

had prescribed the anti-anxiety medication, Ativan, prior to 1985

and that he continued to take the medication throughout the

period. He gave his opinion that he would have made the same

diagnosis between 1985 and 1995 that he made based on his

evaluation in 1995 if the same information had been presented and

if he used the criteria in the 1994 manual. He estimated that

Marcotte's GAF range from 1987 to 1992 was between 45 and 60.

The administrative record includes medical records from

White Mountain Mental Health and Developmental Services beginning

on July 27, 1994, when Marcotte referred himself to the clinic

because of his panic attacks and alcohol abuse. The notes

indicate a diagnosis of panic disorder without agoraphobia,

alcohol dependence, and a GAF score of 30 with the highest GAF

6 score of 50. On January 21, 1995, Marcotte's therapist completed

a mental impairment questionnaire in which she indicated that

restriction of Marcotte's daily living activities was marked, his

difficulties in social functioning were moderate, that he often

experienced deficiencies in concentration, and that according to

his report he had continual episodes of deterioration.

An administrative hearing, following remand, was held on

September 12, 1995. Marcotte testified about his panic attacks

during the relevant period between October 1987 and December

1992. He said that he was hospitalized in September 1987 because

of a panic attack and said that he experienced panic attacks

several times a month despite taking medication, Ativan, to

control the attacks. He said that he also used alcohol, a six-

pack of beer or more each day, to control his anxiety and panic

and that he had little contact with other people during the

period as he spent most of his time at home fearing that a panic

attack would occur if he left home. He explained that being

around people or being in a place where he knew he could not get

away by himself was likely to trigger his panic attacks. He did

not receive counseling for his mental condition during the period

because, he said, he did not need counseling since he was taking

Ativan and using alcohol. He also said that he could not afford

counseling and his medical doctors did not recommend treatment.

7 He sought counseling again later to control his alcoholism.

During the period, he treated with his medical doctor who

continued to prescribe Ativan to control his anxiety and panic

attacks and who noted Marcotte's chronic alcoholism.

The ALJ posed a hypothetical guestion about a worker with

restricted light work ability at an unskilled or semiskilled

level and then added a restriction limiting contact with the

public. Even with the restriction, the vocational expert found

that significant numbers of appropriate factory jobs were

available in packaging, testing, grading, sorting, inspecting,

and examining. In response to Marcotte's attorney's hypothetical

guestion, which emphasized his psychological limitations, the

vocational expert said that no jobs existed that he could

perform.

In his decision dated March 26, 1996, the ALJ again found

that Marcotte was able to do light work, except sitting or

standing more than one hour at a time, walking for more than

thirty minutes, or performing extremes of reaching or freguent

bending. He found that Marcotte's mental impairment, an anxiety

disorder, precluded jobs that reguired dealing with or waiting on

the public but otherwise did not limit his work ability. The ALJ

ruled out a substance abuse impairment based on Marcotte's use of

alcohol. The ALJ completed a psychiatric review technique form which

guides an evaluation of mental impairment based on the mental

disorders listed at 20 C.F.R. P t . 404, Subpt. P, A p p . 1, and

which focused on § 12.06, "Anxiety Related Disorders." The ALJ

indicated on the form that Marcotte had anxiety related disorders

that included persistent irrational fear of a specific situation

and recurrent severe panic attacks. However, he rated Marcotte's

impairment in daily living as slight, in social functioning as

moderate, and determined that Marcotte seldom experienced

deficiency in concentration and only once or twice experienced

episodes of deterioration. The ALJ also found that Marcotte's

symptoms did not result in complete inability to function outside

of his home. Thus, the ALJ found that Marcotte did not have the

required levels of severity for a listed anxiety disorder

impairment.

The ALJ concluded, based on Marcotte's residual functional

capacity and the testimony of the vocational expert, that jobs

existed that Marcotte could perform despite his exertional and

nonexertional functional limitations and ruled that he was not

disabled.

Standard of Review After a final determination by the Commissioner and upon

request by a party, the court is empowered "to enter, upon the

pleadings and transcript of the record, a judgment affirming,

modifying, or reversing the decision of the Secretary, with or

without remanding the cause for a rehearing."

(g). The Commissioner's factual findings are conclusive if

supported by substantial evidence. Id.; Irlanda-Qrtiz v.

Secretary of H.H.S.,

(1st Cir. 1991).

Substantial evidence is "'such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'"

Richardson v. Perales,

(1971) (quoting

Consolidated Edison Co. v. N.L.R.B.,

(1938));

see also Rodriquez Pagan v. Secretary of H.H.S.,

(1st C i r . 1987).

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence, settle credibility issues, and

draw inferences from the record evidence. Ortiz,

69; Burgos Lopez v. Secretary of H.H.S.,

(1st

Cir. 1984). The court will defer to the ALU's credibility

determinations, particularly where those determinations are

supported by specific findings. Frustaqlia v. Secretary of

H .H .S .,

(1st Cir. 1987). Accordingly, the

Commissioner's decision to deny benefits will be affirmed unless

10 it is based on a legal or factual error. Manso-Pizarro v.

Secretary of H.H.S.,

(1st Cir. 1996).

Discussion

On appeal, Marcotte challenges the ALJ's determination, made

at the fifth step of the seguential analysis, that he was not

disabled during the relevant period.5 At the fifth step, the

burden shifts to the Commissioner to show that despite the

claimant's severe impairment, he retains the residual functional

capacity to do work other than his prior work, and that work the

claimant can do exists in significant numbers in the national and

regional economies.

(f); Keating v.

Secretary of H.H.S.,

(1st Cir. 1988).

Marcotte contends that the ALJ erroneously discounted Dr.

Martin's retrospective opinion of his disability during the

5 The ALJ is reguired to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work.

(1995) .

11 period between 1987 and 1992 and determined that his mental

condition was not a significant impairment.6 In doing so, he

argues, the ALJ impermissibly substituted his own opinion for Dr.

Martin's opinion and diagnosis. The disputed guestion in this

case, therefore, is whether substantial evidence exists in the

record to support the ALJ's determination that Marcotte was not

disabled, notwithstanding Dr. Martin's opinion and retrospective

diagnosis of the severity of his psychological impairment.

A. Retrospective Diagnosis of Disability

Dr. Martin's 1995 opinion and diagnosis were based on

Marcotte's narrative report during their meeting in May 1995 of

his condition from October 1987 through 1992, and a comparison of

Martin's treatment diagnosis in 1985 with his evaluation in 1995.

He concluded that Marcotte suffered panic attacks and anxiety

during the period to a degree that would have "impact[ed] on his

ability to work efficiently and consistently." Dr. Martin

"hypothesized" a GAF score for the relevant period between 45 and

60 (which indicates a moderate to serious impairment) while

6 Marcotte also seems to suggest that having sought Dr. Martin's opinion, as directed by the court's order, the ALJ was obligated to accept his opinion or obtain another consultative examination. Given the lack of contemporaneous evidence in this record, it does not appear that additional opinions, from psychologists who would have had less or no previous contact with Marcotte, would have been any more credible.

12 noting that he did not have some of the necessary information to

make the assessment.

The ALJ did not credit Dr. Martin's diagnosis that Marcotte

was disabled by his anxiety and panic attacks, and the effects of

his treatment,7 during the relevant period between 1987 and 1992

and made specific findings in support of his decision. First,

the ALJ noted that Marcotte had received no psychological

treatment or assessment during the period. Second, the ALJ found

no evidence during the period that alcohol abuse limited

Marcotte's work activities. Third, Marcotte had not claimed

anxiety as a disabling disorder in his applications for benefits.

Fourth, Dr. Martin's 1995 evaluation was based entirely on

Marcotte's own report of his symptoms during the period and was

contradicted by his own observations of Marcotte's appearance and

7 The court, on remand, directed determination of "the synergetic effect of alcohol and Ativan on plaintiff's RFC." Although alcohol use can no longer be considered as a contributing factor to disability, see

(d)(2)(C), it is likely that the restriction, added by amendment effective March 29, 1996, does not apply in this case where the last final decision of the Commissioner was issued on March 26, 1996, see, e.g.,Perkins v. Chater,

(7th Cir. 1997); Newton v. Chater,

(8th Cir. 1996); Santos v. Chater,

(D. Mass. 1996). There appears, however, to be no evidence in the record pertaining to the combined effect of alcohol abuse and Ativan. Since Marcotte has had two separate opportunities to augment the factual record in support of his claim for benefits, it seems that evidence of side effects or synergetic effects is simply unavailable and that further remand for additional evidence would be futile.

13 manner during the interview. Fifth, Dr. Martin disclaimed his

ability to assess Marcotte's functioning during the applicable

period.

Retrospective diagnoses (medical opinions of claimants'

impairments which relate back to the covered period) may be

considered only to the extent that such opinions both

substantiate a disability that existed during the eligible period

and are corroborated by evidence contemporaneous with the

eligible period. See Evangelista v. Secretary of H.H.S.,

(1st Cir. 1987); see also, e.g.. Likes v. Callahan,

(5th Cir. 1997); Adams v. Chater,

(10th Cir. 1996); Perez v. Chater,

(2d

Cir. 1996); Jones v. Chater,

(8th Cir. 1995);

Flaten v. Secretary of H.H.S.,

(9th Cir.

1995). A psychologist's professional opinion is weighed based on

the type of evaluation, the treatment relationship, evidentiary

support for the opinion, the opinion's consistency with the

record, and his specialization.

(d).

Because the Commissioner is responsible for making the decision

as to whether a claimant is disabled based on the evidence in the

record, an opinion that a claimant is disabled or unable to work

or that his impairments meet or egual the reguirements of a

14 listed impairment is not entitled to any particular significance.

§ 404.1527(e) .

The record substantiates that Marcotte suffered from anxiety

and panic attacks both before and after the applicable period and

that his symptoms were alleviated, at least to some extent, by

the prescribed medication, Atavin, and his consumption of

alcohol. Dr. Martin was Marcotte's treating psychologist for

only a few months in 19858 and had not treated Marcotte for ten

years when he made his evaluation, based on an interview, in May

1995. Because Marcotte was not treated for his anxiety during

the applicable period, other than by his medical doctor's

prescription of Ativan, no clinical evidence from the period

supports Dr. Martin's opinion of the severity of Marcotte's

impairment. Thus, Dr. Martin had neither the benefit of a

professional continuous longitudinal picture of Marcotte's

condition, nor supporting contemporaneous clinical evidence for

his diagnosis in 1995. In addition, as the ALJ noted. Dr. Martin

acknowledged the difficulty in 1995 of making a diagnosis of

Marcotte's condition during the applicable period and stated that

he lacked some necessary information to make a GAF assessment.

8 Dr. Martin's treatment notes from 1985 do not seem to be included in the record.

15 Other evidence in the record is inconsistent with Dr.

Martin's retrospective diagnosis and assessment of the severity

of Marcotte's mental impairment. At the hearing before the ALJ

in May 1993, Marcotte testified that he left his employment in

1987 because of his back condition although he also explained

that the panic attack, which occurred at one of his two jobs,

kept him from returning to that particular employer. Shortly

thereafter, Marcotte applied for job rehabilitation. In one

rehabilitation program, he attended four days of evaluation and

considered accepting an opportunity to be trained as an EEC

technician at an out-of-state school but turned it down because

of the hardship relocation would impose on him and his wife. In

1988, he again sought work through vocational rehabilitation, and

attended interviews and meetings, but turned down their job

referrals because they were too physically demanding. Marcotte

did not indicate in his testimony that he experienced any

particular anxiety during that time or that his anxiety disorder

interfered with his efforts at vocational rehabilitation. The

ALJ also noted that he observed Marcotte at the May and July 1993

hearings, both within a year of the applicable period, and found

no cognitive deficit or functional inability sufficient to

constitute a disability.

16 Marcotte testified at the September 1995 hearing that he was

then more withdrawn than he had been in 1992, suggesting that his

symptoms had worsened since the relevant period. He also

explained that his medication had been increased within a year of

the hearing. Even at the increased dosage level, Marcotte

described only minimal side effects from Ativan saying that he

had no physical effects and that he might get drowsy.

In May 1993, Dr. Bishop summarized Marcotte's "health

problems" during the applicable period as "chronic alcoholism,"

"sguamous cell carcinoma of the lip and nare in 1989," and

"anxiety probably related to his alcoholism." Dr. Bishop's notes

do not indicate impairment in functioning or the severity of

impairment suggested by Dr. Martin's retrospective diagnosis.

While Dr. Bishop noted Marcotte's excessive alcohol use, he did

not comment in his office notes on any potential interaction of

Ativan with alcohol abuse.

While the record confirms that Marcotte continued to

experience anxiety and take medication during the applicable

period, no contemporaneous medical evidence exists in the record

pertaining to the severity of Marcotte's impairment during the

period. In addition, substantial evidence exists in the record

supporting the ALJ's reasons for discounting Dr. Martin's

retrospective diagnosis and for not crediting Marcotte's

17 testimony that he was unable to work because of his anxiety

disorder during the period.9 For those reasons, the ALJ

appropriately discounted Dr. Martin's opinion and diagnosis.

See, e.g., Grebenick v. Chater, No. 96-3032,

(8th

C i r . A u g . 6, 1997).

B. Substantial Evidence in Support of ALJ's Determination

The ALJ found that Marcotte's anxiety disorder caused him to

experience a "persistent irrational fear of a specific object,

activity or situation which results in a compelling desire to

avoid the dreaded object, activity, or situation," and "recurrent

severe panic attacks manifested by a sudden unpredictable onset

of intense apprehension . . . occurring on the average of at

least once a week." He also found that although the disorder was

"severe," it caused only minimal to moderate effects in

Marcotte's ability to function that were not sufficient to meet

the reguirements of a listed anxiety disorder. The ALJ concluded

that Marcotte's anxiety disorder would prevent him from

performing jobs that reguired dealing with the public, but would

not otherwise limit his job function. Thus, in essence, the ALJ

9 The ALJ considered Marcotte's reported activities and medical evidence as well as his own observations during three hearings in making his credibility determination. See Averv v. Secretary of H.H.S.,

(1st Cir. 1986).

18 concluded that if Marcotte's employment did not require contact

with the public, he would not experience anxiety attacks that

would impair his ability to work.

Although substantial evidence exists in the record to

support the ALJ's finding as to the frequency of Marcotte's

anxiety attacks, it is lacking with respect to the disability

determination. Marcotte told Dr. Martin in 1995 that over the

time he had been experiencing anxiety attacks, minor attacks

occurred every few days but that every once in a while he had a

"big one." Notes from White Mountain Mental Health in 1994 state

that he reported then that he tended to have one major attack a

month and minor attacks about once a week despite staying at home

to avoid unfamiliar people and situations. The record does not

establish, however, what triggers the attacks, whether merely

avoiding contact with the public would avoid more frequent or

severe attacks in a work setting, or whether he could work

despite the frequency and type of anxiety he experienced even

when he did avoid the public.

The ALJ relied on the Medical-Vocational Guidelines, 20

C.F.R. Part 404, Subpt. P, App. 2 ("the Grid") as a "framework"

in deciding that a significant number of jobs existed that

Marcotte could do despite his limitations. The Grid is an

appropriate shortcut at the fifth step only if a nonexertional

19 impairment, such as a psychological disorder, does not

significantly affect the claimant's range of work ability. See

Ortiz v. Secretary of Health and Human Servs.,

(1st Cir. 1989). The ALJ found that Marcotte's anxiety disorder

limited his ability to perform the full range of light work

because he would need to avoid jobs dealing with the public, and

the vocational expert testified that a limitation in dealing with

the public would restrict the jobs available. Thus, the Grid was

not an appropriate basis for determining that Marcotte was not

disabled. See Ortiz,

; Gagnon v. Secretary of

Health and Human Servs.,

, 665 n.6 (1st Cir. 1981) .

A vocational expert's opinion may serve as significant

evidence, but only if her opinion was elicited with an accurate

hypothetical based on significant record evidence. See Arocho v.

Secretary of Health and Human Servs.,

(1st Cir.

1982). The hypothetical posed by the ALJ to the vocational

expert included a limitation that Marcotte avoid the public but

did not explain that Marcotte would experience one "big" anxiety

attack per month and "small" anxiety attacks at least once a

week. Thus, without the specific limitation that the ALJ found,

the vocational expert's opinion cannot serve as substantial

evidence in support of the ALJ's determination.

20 Marcotte's attorney's hypothetical, by his own description,

emphasized Marcotte's psychological impairments. He described a

claimant with a "frequency of panic attacks that would result in

him being absent from work at least three times a month and that

he would have difficulty working at a regular job on a sustained

basis . . . and frequently secludes himself in his home." The

vocational expert responded that such a claimant would not be

able to do the jobs she had identified. Record evidence from the

period of 1987 through 1992 does not support the severity of

impairment suggested by the attorney's hypothetical. Thus, the

attorney's hypothetical also did not elicit an opinion that can

serve as substantial evidence.

Because substantial evidence does not exist in the record to

support the ALJ's determination, the Commissioner's decision that

Marcotte was not disabled must be reversed. The case must be

remanded to determine whether or not jobs existed in the relevant

economies that Marcotte could perform despite his physical and

mental impairments during the period between 1987 and 1992 as

found by the ALJ.

Conclusion

For the foregoing reasons, the defendant's motion to affirm

the decision of the Commissioner (document no. 8) is denied; the

21 plaintiff's motion to reverse (document no. 7) is granted, and

the case is remanded for further administrative proceedings

consistent with this order. The clerk of court shall enter

judgment.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 30, 1997

cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.

22