Mason v. SSA CV-98-417-B 04/20/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joanne Marie Mason

v. Civil No. 98-417-B

Kenneth Apfel, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Joanne Marie Mason suffers from depression and anxiety. She

has not engaged in substantial gainful activity, as defined by

Social Security Administration ("SSA") regulations, since

February 24, 1994, the date on which she applied for Supplemental

Security Income ("SSI") disability benefits. After the SSA

denied Mason's application, she reguested a hearing before an

Administrative Law Judge ("ALJ"). ALJ Robert Klingebiel held a

hearing on Mason's claim in May 1995 and denied her application

in February 1996, finding that Mason has the residual functional

capacity to perform her past relevant work as an elder care

companion. The Appeals Council subseguently denied Mason's

reguest for review, rendering the ALJ's decision the "final"

decision of the Commissioner. Mason brings this action pursuant to Section 20 5 (g) of the

Social Security Act,

(g) (West Supp. 1998) ("the

Act"), challenging the ALJ's finding that her psychological

impairments do not preclude her from working as an elder care

companion. For the following reasons, I vacate the ALJ's

decision and remand the case for further proceedings.

BACKGROUND1

Joanne Mason was 50 years old at the time of the ALJ's

decision. She has a ninth-grade education. Prior to her alleged

disability. Mason held full-time jobs as a boarding house manager

and elder care companion. She has not held gainful employment

since February 24, 1994, the date on which she filed for SSI

benefits.

Mason alleges an inability to work since March 1, 1993. She

was first seen for medical evaluation in early 1994, after

complaining of chest pain. Physical examination at that time

indicated some evidence of chronic obstructive pulmonary disease

("COPD"). Shortly thereafter, in late May 1994, Mason was

1 As Mason does not contest the ALJ's finding with respect to her physical impairments, I present the facts most relevant to the psychological impairment at issue. These facts are taken from the Joint Statement of Material Facts filed by both parties.

-2- diagnosed with acute myocardial infarction and coronary artery

disease, along with mild congestive heart failure. Between that

time and February 1995, Mason was medically evaluated on several

occasions for heart and circulatory problems. These visits

included treatment by Dr. Jon Wahrenberger from November 1994 to

March 1995. During this treatment period. Mason experienced

freguent crushing chest pain. Dr. Wahrenberger concluded that

Mason was disabled on the basis of her symptoms, but he saw her

as a victim of her own bad habits, including tobacco consumption,

weight gain, and high cholesterol. Complications from her heart

condition included right hand ischemia, with involvement of the

third and fourth fingers, resulting from a large embolism. Mason

subseguently underwent coronary angiography and catheterization

for her heart conditions on January 25, 1995, and was discharged

on January 29, 1995.

On June 21, 1995, Mason returned to see Dr. Wahrenberger,

who noted that Mason had improved dramatically, appeared to have

normal function, and was without significant pain in her right

hand. He noted that she was an anxious woman, with many worries

about returning to work. He advised psychiatric evaluation, and

saw no physical reason that would prevent her from returning to

work.

-3- During the same time period, on May 25, 1995, the ALJ held a

hearing in consideration of Mason's application for SSI benefits.

Mason appeared and testified at this hearing. The ALJ determined

that a consultative psychological examination was reguired, since

Mason appeared to have some psychological issues that were not

well developed in the medical records. Mason subseguently

underwent a psychological evaluation at the reguest of the SSA on

August 31, 1995. Dr. Phillip Massad, Ph.D., took her history and

complaints, and Mason tested as both depressed and anxious. She

scored 76 on the Zung Depression Inventory, a high score for an

outpatient. She also scored significantly above average (71) on

the Clinical Anxiety Scale. Her demeanor was irritable and her

mood was angry. She told Dr. Massad that her daily activities

had changed as a result of her condition; she had less contact

with others, was more withdrawn and avoided stressful situations.

Dr. Massad diagnosed depression and anxiety, and noted that

treatment with medication may help. He stated that Mason's

present emotional status would likely interfere with her

adaptation to stresses common to a working environment. He

stated that it was unclear how Mason would deal with attendance,

schedules and supervisors.

-4- Dr. Massad also completed a Medical Assessment of Ability to

Do Work-Related Activities (Mental). In his evaluation, which

was based solely on psychological factors. Dr. Massad found that

Mason had poor or no ability to interact with supervisors or to

deal with work stresses. He found she had fair ability to follow

work rules, relate to co-workers, deal with the public, use

judgment, function independently and maintain

attention/concentration. In explaining the medical/clinical

findings that support this assessment. Dr. Massad wrote that

Mason would likely react to job stresses with considerable

frustration. Dr. Massad also found that Mason had poor or no

ability to relate predictably in social situations, and she rated

fair to poor on ability to behave in an emotionally stable manner

and on demonstrating reliability. Dr. Massad explained that

these findings were supported by Mason's scores on the Zung

Inventory.

Mason appeared and testified at a second SSA hearing held on

December 13, 1995, subseguent to Dr. Massad's consultative

psychological examination. Bruce Chipman, a Vocational Expert

("VE"), also appeared and testified that he had not received any

information about Mason's medical or work history prior to the

-5- hearing and had not reviewed information about Mason's education

or age.

Chipman inguired about Mason's past work as a boarding house

manager. Mason testified that she inspected rooms and collected

rents in exchange for a free room. Relying on Mason's responses,

Chipman testified that Mason's past work as a boarding house

manager would be classified as light exertion and low-level,

semi-skilled work.

In response to a hypothetical guestion involving an

individual who is 50 years old with a ninth-grade education,

restricted to lifting no more than 20 pounds and further limited

to jobs where there were no other strenuous reguirements, such as

climbing ladders, or repetitive lifting from the floor onto

shelves, or any interaction with customers or the public,

Chipman testified that such an individual could not perform

Mason's past work if one of the duties was collecting rent.

Chipman stated that such an individual could, however, work as a

companion, a semi-skilled and light exertion occupation.

Mason's attorney then cross-examined Chipman, asking him an

additional hypothetical guestion. In response to a hypothetical

guestion with the additional limitations that the individual has

-6- a poor ability to relate predictably in social situations and a

poor ability to interact with supervisors and deal with work

stress, Chipman stated that the additional limitations would

eliminate all of the previously identified jobs.

The ALJ found that the medical evidence established that

Mason has a severe impairment from atherosclerotic cardiovascular

disease, status-post myocardial infarction, depression and

anxiety, but that she does not have an impairment or combination

of impairments that either meet or equal in severity one of the

Commissioner's listed impairments. See 20 C.F.R. Part 404,

Subpart P, Appendix 1. Having found that Mason's impairments did

not meet any listed impairments under step three of the five-step

sequential disability analysis,2 the ALJ went on, under step four

2The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful employment; (2) whether the claimant has a severe impairment thatlasted for twelve months or had a severe impairment for a periodof twelve months in the past; (3) whether the impairment meets or equals 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. See

.

-7- of the analysis, to assess whether Mason's impairments prevented

her from performing her past relevant work. The ALJ found that

Mason retained the residual functional capacity to perform the

exertional and non-exertional requirements of work, except for

the exertional requirements of very heavy, heavy, medium and the

full range of light work. He also found that she had non-

exertional restrictions of no climbing ladders or frequent

bending; and that she should be limited to low stress jobs that

do not require her to make decisions or interact frequently with

the public.

The ALJ found that Mason had an affective disorder and an

anxiety disorder with slight restrictions on activities of daily

living; slight difficulties in social functioning; seldom

deficiencies of concentration, persistence and pace; and no

episodes of deterioration or decompensation in work or work-like

settings.3 As part of this review, the ALJ's assessed the level

3 The OHA Psychiatric Review Technique Form enables the ALJ to conduct the mental disorder disability assessment mandated by 20 C.F.R. Part 404.1520a and according to the criteria set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 at 12.00. The latter section notes: "The listings for mental disorders are so constructed that an individual meeting or exceeding the criteria could not reasonably be expected to engage in gainful work activity. Individuals who have an impairment with a level of severity which does not meet the criteria of of severity for both disorders using criteria set forth in Social

Security regulations.4 The criteria for an affective disorder

reguire both the presence of at least one category "A" criterion

(depressive syndrome, manic syndrome, bipolar syndrome) and the

presence of at least two category "B" criteria (e.g., marked

restriction of activities of daily living, marked difficulties in

maintaining social functioning). The criteria for an anxiety

disorder reguire both the presence of at least one category "A"

criterion (persistent anxiety, persistent irrational fear,

recurrent severe panic attacks, recurrent obsession, recurrent

and intrusive recollection) and at least two category "B"

criteria (same as noted previously) or the category "C" criterion

(complete inability to function outside of one's home). The

ALJ's Review Form indicates that Mason does not satisfy the

category "B" criteria for per se disability under either

the listings for mental disorders may or may not have the residual functional capacity (RFC) which would enable them to engage in substantial gainful work activity." Under the same section, the assessment of severity considers four factors: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decompensation in work or work-like settings.

4 See 20 C.F.R. Part 404, Subpart P, Appendix 1 at 12.04, 12.06. category. She was noted to exhibit only slight restrictions of

activities of daily living or difficulties maintaining social

functioning, while seldom suffering from deficiencies of

concentration and never exhibiting deterioration or

decompensation in work. Hence, a functional limitation/severity

assessment was conducted to determine Mason's residual functional

capacity ("RFC").

Having found Mason capable of performing a range of light

work, with the additional limitations noted, the ALJ found that

Mason was not precluded from returning to her past work as a home

attendant and companion. He noted that, despite her diagnosed

depression and anxiety. Mason had satisfactory attention span and

the ability to attend to her own personal affairs and activities

of daily living. The ALJ further noted Mason's only functional

problem was her inability to adapt to stress in the work

environment. He specifically determined that Dr. Massad's

psychological findings (as included in hypotheticals given to the

VE) were not suitable for inclusion in the residual functional

capacity assessment because they were not supported by any other

evidence documented in the record. Therefore, the ALJ determined

that plaintiff had the residual functional capacity to perform

-10- her past relevant work as a home attendant and elder care

companion, and was not disabled for purposes of receiving SSI

benefits.

Mason challenged this decision by submitting an additional

report from Dr. Wahrenberger to the Appeals Council. Dr.

Wahrenberger wrote in this report that, in addition to physical

impairments. Mason had psychological issues which likely affected

her ability to work. He advised that she see an internist and

begin psychological counseling.

Dr. Massad wrote a follow-up letter on April 4, 1996, in

which he explained again that his conclusion had been based on

Mason's test scores on the Zung Depression Inventory and Clinical

Anxiety Scale. He stated that Mason's emotional status, at the

time of evaluation, raised concerns about her ability to

adeguately function in a work situation.

The Appeals Council denied Mason's reguest for review on May

4, 1998, and this appeal followed.

STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant's application for benefits and upon a timely reguest by

the claimant, I am authorized to: (1) review the pleadings

-11- submitted by the parties and the transcript of the administrative

record; and (2) enter a judgment affirming, modifying, or

reversing the ALJ's decision. See

(g). My

review is limited in scope, however, as the ALJ's factual

findings are conclusive if they are supported by substantial

evidence. See Irlanda Ortiz v. Secretary of Health and Human

Servs.,

(1st Cir. 1991);

(g).

The ALJ is responsible for settling credibility issues, drawing

inferences from the record evidence, and resolving conflicting

evidence. See Irlanda Ortiz,

. Therefore, I must

"'uphold the [ALJ's] findings . . . if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adeguate to support [the ALJ's] conclusion.'"

(guoting

Rodriguez v. Secretary of Health and Human Servs.,

(1st Cir. 1981)).

If the ALJ has misapplied the law or has failed to provide a

fair hearing, however, deference to the ALJ's decision is not

appropriate, and remand for further development of the record may

be necessary. See Carroll v. Secretary of Health and Human

Servs.,

(2d Cir. 1983); see also Slessinqer v.

Secretary of Health and Human Servs.,

(1st Cir.

-12- 1987). I apply these standards in reviewing the issues Mason

raises on appeal.

DISCUSSION

Mason argues that the ALJ erred because: (1) the

hypothetical guestions he posed to the VE failed to include all

of Mason's functional limitations; (2) he failed to allow the VE

to review an exhibit filed prior to the hearing; and (3) he

failed to take proper account of uncontradicted medical evidence

of Mason's mental impairment. Because I resolve the last point

in Mason's favor, I need not consider her other arguments.5

5 On remand, however, the ALJ should bear in mind that hypothetical guestions must accurately reflect the medical evidence of record. See Arocho v. Secretary of Health and Human Servs.,

(1st Cir. 1982) (ALJ's hypothetical guestions inappropriate where they fail to adeguately convey to the expert the precise time limits on claimant's daily activities); see also Mercier v. Secretary of Health and Human Servs.,

(1st Cir. 1995) (hypotheticals appropriately included specific one hour time limitation supported by medical report and claimant's own testimony); Melendez v. Sec, of HHS,

, *2 (D.P.R. 1994) (ALJ erred by not including mental deficiency noted by medical report in hypothetical guestion posed to VE); Edwards v. Secretary of Health and Human Servs.,

, *5 (D.N.H. 1994), aff'd ,

(1st Cir. 1994) (hypotheticals which included specific limitations noted in medical reports adeguately described claimant's medical condition to V E ) .

-13- An ALJ is required to apply a five-step sequential analysis

to determine whether aclaimant is disabled within the meaninq of

the Act. At step four of the analysis, the ALJ must determine

whether an impairment would prevent a claimant from performinq

her past relevant work. See

(e). The ALJ

must assess both the claimant's residual functional capacity

("RFC") -- i.e., what the claimant can do despite her impairments

-- and the claimant's past relevant work experience. See id.;

see also Santiago v. Secretary of Health and Human Servs.,

(1st Cir. 1991). If the ALJ finds that the claimant's

RFC does not prevent her from doinq her past relevant work, then

the ALJ must hold that the claimant is able to work and deny

her claim. See id.;

(b). In makinq such

findinqs, the ALJ must explain in detail how he came to his

determination. See Santiago,

. The ALJ's

explanation must be based on the record, which includes any

hearinq testimony. See

The initial burden is on the claimant to make a "reasonable

threshold showinq" that she cannot perform her past relevant work

because of her alleqed disability. See Santiago,

.

To meet her burden, the claimant need only produce evidence of

-14- how her functional limitations preclude her from performing her

past relevant work. See

Although the burden is on the

claimant, once the claimant has alerted the ALJ to the presence

of an issue, the ALJ is reguired to further develop the record.

As part of this record, the ALJ may accept testimony from

medical experts and vocational experts. The testimony of a

vocational expert may be directed at assessing whether a claimant

can perform jobs similar to her pre-disability employment. See

Arocho,

. Medical evidence is reguired in

assessing whether a claimant suffers from a mental disorder.

See

.1520a, §404.1546, and §404 Subpart P, Ap p . 1

at 12.00. While the ALJ may assess the credibility of particular

testimony and choose between conflicting evidence, "the ALJ is

simply not at liberty to substitute his own impression of an

individual's health for uncontroverted medical opinion."

Carrillo Marin v. Secretary of Health and Human Servs.,

(1st Cir. 1985); see also Heggartv v. Sullivan,

(1st Cir. 1991); Gonzalez Perez v. Secretary of Health

and Human Servs.,

(1st Cir. 1987); Nieves v.

Secretary of Health and Human Servs.,

(1st Cir.

1985) .

-15- Here, Mason does not contest the ALJ's finding that she is

not physically disabled. Rather, she challenges the ALJ's

finding that her psychological impairments are not disabling.

The only psychiatric evidence of record is the report of Dr.

Phillip Massad. As part of that assessment. Dr. Massad noted

that Mason had: (1) poor ability to interact with supervisors;

(2) poor ability to deal with work stresses;6 and (3) poor

ability to relate predictably in social settings.7 He also

reported, with respect to Mason's current level of functioning,

that "she has less contact with others. . . she attempts to avoid

all stressful situations," and that "[i]n regard to work

situations, [Mason's] present emotional status would likely

interfere with her adaptation to stresses common to a working

environment. Given the lack of extensive employment history, it

is unclear how the claimant would deal with attendance, schedules

and supervisors." Dr. Massad subseguently clarified that this

statement was based on Mason's scores on the depression and

6 Dr. Massad states "[patient] seems depressed and irritable. Would likely react to job stress with considerable frustration." (Tr. 262)

7 Dr. Massad states "Again, emotional status may lead to frustration and, eventually, conflict." (Tr. 263)

-16- anxiety tests, as well as his clinical observations, all of which

"raise[d] concerns about her ability to adequately function in a

work situation."

The psychiatric limitations noted by Dr. Massad were

reflected, to some extent, in the hypothetical question the ALJ

posed to the VE.8 The VE noted that a person constrained by the

8 VE Bruce Chipman was asked: "we are presented with a potential worker who is currently 50 years of aqe . . . who's completed the ninth qrade of school . . . [where the job in question entails] relatively simple instructions and routine tasks to be performed durinq the day. The individual didn't have to wait on customers. Didn't have to deal frequently with the public. And in terms of decision makinq . . . there would not be a qreat deal of judqments and decision to make durinq the day that could be stressful. So we're basically lookinq at . . . a job that's relatively low stress from the public and from the complexity of the job. And lookinq at the type of activity that she was involved in earlier in the boardinq home do you feel that with these types of limitations that type of job as it would qenerally be performed could still be performed?" (Tr. 107) (emphasis added). To which Mr. Chipman replied: "With the limitations on the stress and if one of the duties is collectinq rents and that type of thinq I believe that the stress level [associated with the boardinq house job] would exceed the limitations qiven [reqardinq the hypothetical individual]."

-17- hypothetical limitations posed by the ALJ would be able to

function as an elder companion. However, in response to Mason's

counsel's added hypothetical limitations - a poor ability to

interact with supervisors, deal with work stresses, or relate

predictably in social settings - the VE stated no jobs could be

performed by such an individual.9

The ALJ partially noted these psychiatric findings in his

decision, stating that "[t]he medical evidence documented in the

record, both physical and psychological, shows that . . . the

claimant's depression and anxiety impose non-exertional

limitations on the claimant's ability to perform the complete

range of light work . . . in the form of being precluded from

high stress occupations." (Tr. 19-20). The ALJ subseguently

noted, however, that "Despite Dr. Massad's indications, I do not

find that the evidence documented in the record supports the

existence of those non-exertional limitations and therefore they

are not suitable for inclusion in the claimant's residual

functional capacity as limitations on her ability to [work]."

9 Mr. Chipman replied: "In my opinion with a poor ability to interact with supervisors and to react to work stresses that would eliminate all jobs." (Tr. 118) (emphasis added).

-18- (Tr. 21). Indeed, contrary to Dr. Massad's findings, the ALJ's

Psychiatric Review Technique Form inexplicably lists Mason's

difficulty in maintaining social functioning as "slight." 10

The ALJ erred by arbitrarily excluding the only psychiatric

evidence before him. See Carrillo,

(ALJ cannot

disregard only medical evidence before him even though it lacks

precision and focus); Nieves,

(ALJ's own opinion

cannot be substituted for uncontroverted medical evidence);

Gonzalez Perez,

(ALJ erred by simply rejecting

the medical evidence before him). Here, Dr. Massad's

psychiatric evaluation indicated Mason's inability to deal with

work stresses and to interact with supervisors. The VE's

conclusion that a hypothetical person with these limitations

would be unable to perform Mason's previous job as a boarding

house supervisor or elder care companion adds evidentiary weight

to Mason's disability claim.11 There is, therefore,

10

, Subpart P, App. 1 at 12.00(c) (2) notes that such social functioning in work situations may involve interactions with the public, responding to supervisors, or cooperative behaviors involving coworkers.

11 The court in Melendez faced a virtually identical situation. See

(D.P.R. 1994). There, the VE stated the hypothetical individual could perform certain work given the limitations posed by the ALJ. However, when the mental deficiency described by a medical report was added to the

-19- insufficient evidence in the record to support the ALJ's decision

to disregard Dr. Massad's findings, and hence to conclude Mason

was not psychologically disabled.12 See Santiago,

-

6.

Accordingly, pursuant to

(g), I vacate the

ALJ's findings and remand for further proceedings which must take

due account of the psychological evidence of record in

determining impairment under step four of the five-step

disability analysis. If necessary, an assessment of Mason's

ability to perform any other work under step five of the analysis

may be reguired. On remand, the ALJ may find that additional

psychiatric examination and/or vocational expert testimony may be

appropriate to further develop the record.13

hypothetical, the VE concluded the hypothetical individual could no longer perform that work. The Court held the VE's first testimony did not constitute substantial evidence supporting the ALJ's determination that the claimant was not disabled because the hypothetical did not adeguately include the noted limitations.

12The ALJ gave no reasoning for his exclusion of Dr. Massad's report, nor specifically recited any conflicting evidence on which he relies.

13 I note that there may be evidence in the record supporting a future finding that Mason's psychological impairments would not preclude her from functioning as an elder companion. Dr. Massad's report itself, as previously noted, stated it was unclear how Mason would deal with attendance.

-20- SO ORDERED.

Paul Barbadoro Chief Judge

April 20, 1999

cc: Jonathan P. Baird, Esq. David L. Broderick, AUSA

schedules and supervisors due to lack of prior work history. Additionally, the assessment of ability associated with that report only refers to "a job" and not necessarily the type of low stress, infrequent contact, and infrequent supervision that an elder companion position would present. Indeed, Mason herself testified that her previous employment as a boarding house manager involved no supervision and rare contact with the owner. On remand, the ALJ may well want to clarify Mason's psychiatric limitations insofar as level of stress and level of supervision that she can tolerate in order to receive more meaningful responses from a VE and avoid a hypothetical that results in the necessary exclusion of all meaningful employment.

-21-