Wendy Dunn v. SSA CV-99-591-B 12/10/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

WENDY DUNN

v. Civil No. 98-591-B

KENNETH S. APFEL. Commissioner. Social Security Administration

MEMORANDUM AND ORDER

Wendy Dunn applied for disability insurance benefits ("DIB")

under Title II and Supplemental Security Income ("SSI") under

Title XVI on October 21, 1994, alleging that she had been unable

to work due to disability since September 11, 1994.1 After the

Social Security Administration ("SSA") denied her applications

initially and on reconsideration, Dunn reguested a hearing before

an Administrative Law Judge ("ALJ"). ALJ Thomas H. Fallon held

1 Dunn filed prior applications under Title II and Title XVI on March 10, 1989. These applications were denied by the Social Security Administration and subseguently by a decision of an ALJ rendered on May 18, 1990. Dunn reguested review of the ALJ's decision by the Appeals Council, which denied her reguest on January 16, 1991. In his September 21, 1996 decision, ALJ Fallon rejected Dunn's reguest to reopen the earlier applications. See Tr. at 25-6. ("Tr." refers to the official transcript of the record submitted to the Court by the Social Security Administration in connection with this case.) Dunn has not challenged the ALJ's denial of her reguest to reopen the earlier applications. hearings on September 11, 1995 and August 20, 1996 and issued a

decision denying Dunn's application on September 21, 1996. In

his decision, the ALJ found that Dunn retained the residual

functional capacity ("RFC") to perform her past relevant work,

and therefore that she was not "disabled" under the terms of the

Social Security Act. The ALJ also found that Dunn's claimed

mental impairment was non-severe and did not limit her ability to

perform basic work activities as long as she took appropriate

medication. On July 1, 1998, the Appeals Council denied Dunn's

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

decision of the Commissioner of the SSA.

Dunn brings this action pursuant to Section 2 0 5 (g) of the

Social Security Act,

(g) (1994), seeking review of

the Commissioner's decision denying her claim for benefits. Dunn

claims that the Commissioner's decision should be reversed

because: (1) the ALJ did not properly evaluate the evidence of

her mental impairment; (2) the ALJ did not properly evaluate her

subjective complaints of pain; and (3) the ALJ's decision that

Dunn had the RFC to perform her past relevant work was not based

on substantial evidence. Because I agree with the first of these

claims, I vacate the ALJ's decision and remand for further proceedings.2

I. STATEMENT OF FACTS3

Wendy Dunn was 28 years old when she applied for benefits.

She has an eleventh-grade education and speaks English. At

various times between 1983 to 1994, Dunn worked as a cashier, a

waitress, a restaurant shift supervisor, and a manager in a

retail pet store. See Tr. at 26, 65, 66, 81-3, 116-17, 280. She

currently lives in her home with her husband and two children.

Dunn suffers from neurofibromatosis,4 a condition that first

2 Although I render no opinion on the merits of Dunn's other claims on appeal, on remand the ALJ should thoroughly evaluate the credibility of Dunn's pain complaints in light of all the evidence that relates to any of the following factors: (1) Dunn's daily activities; (2) the location, duration, freguency, and intensity of Dunn's pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any pain medications Dunn has taken; (5) any non-medication forms of treatment for pain relief that Dunn has received; (6) any functional restrictions; and (7) any other relevant factors. See

(c) (3), 416.929(c)(3) (1999); Avery v. Secretary of Health and Human Servs.,

(1st Cir. 1986) .

3 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts submitted by the parties.

4 Neurofibromatosis is "a familial condition characterized by developmental changes in the nervous system, muscles, bones, and skin and marked superficially by the formation of multiple pedunculated soft tumors . . . distributed over the entire body associated with areas of pigmentation." Dorland's Illustrated Medical Dictionary 1129 (28th ed. 1994).

-3- began to manifest itself in 1982. In April 1986, she underwent

exploratory surgery on a mass located in her right brachial

plexus region. See i d . at 168, 178, 186, 190. Dr. Merwyn Bagan,

the surgeon who performed the procedure, determined that the mass

was a neurofibroma, or tumor, that could not be removed. See i d .

at 178, 186-87, 190. At the time of the surgery, Dunn did not

suffer from any neurological deficits. Since that time, several

MRIs have revealed no enlargement of the tumor. See i d . at 180-

81, 224, 318, 326, 332, 356. Dunn has, however, complained of

pain in her right arm that worsens with activity.

In May 1989, Dunn was examined at Massachusetts General

Hospital ("MGH") by Dr. Robert L. Martuza. Dr. Martuza found

that Dunn had reasonable function of her right arm, but that she

had some weakness in the intrinsic muscles and some decrease in

pinprick sensation on her fingers. In June of the same year. Dr.

Homer Lawrence completed a residual functional capacity

assessment in connection with Dunn's prior application for

benefits.5 See i d . at 166-68. After reviewing her medical

records. Dr. Lawrence concluded that Dunn was capable of

5 The parties' joint statement of material facts states that Dr. Lawrence examined Dunn. However, the record itself suggests that Dr. Lawrence performed an evaluation based on a review of Dunn's medical records. See Tr. at 166-70.

-4- performing light work with some limitations on the use of her

right arm. He added that there had been "no 12-month closed

period of disability."

Dr. David Smith examined Dunn at MGH in February 1990. With

respect to Dunn's neurofibromatosis. Dr. Smith found that there

had been no sensory deficit progression, no progression in

symptoms, and no enlargement of the mass at the base of Dunn's

neck. Dr. Smith found that Dunn's wrist muscles were 4/5, that

her muscle groups in all other extremities were 5/5, and that

there was no drift or atrophy. Dunn's gait and station were

normal, there was no ataxia, and a sensory exam for vibration was

intact. A CT scan confirmed that there had been no progression

of the neurofibroma in Dunn's right brachial plexus area since

1984 .

Dr. Smith also noted that Dunn complained of chronic

headaches that occurred approximately two to three times per week

and often lasted more than one day at a time. See i d . at 220.

According to Dr. Smith's notes, Dunn treated these headaches with

Ibuprophen, which provided minimal relief. See i d . Dr. Smith

concluded that the headaches were stress-related. Dunn also

complained of difficulty gaining weight. See i d . Dr. Smith

noted that she weighed 87 pounds, stood 4' 11' tall, and ate three full meals a day plus high-caloric snacks.

In a report dated March 2 9 , 1994, Dr. Philip Wolf, Dunn's treating neurologist, noted that she had continued complaints of

pain in her neck, right shoulder, chest, and right leg. See i d .

at 315. Dr. Wolf noted that Dunn had attributed a recent car

accident to problems that she was experiencing with her right leg

and foot. See i d . Dr. Wolf related Dunn's complaints of

increased tingling during standing and increased difficulty with

walking or sitting in one position for too long. See i d . He

reported that both of Dunn's knees had a tendency to give out.

He also noted that Dunn took Prozac and was using Tylenol to

treat headaches about four to five times a week. See i d .

In August 1994, Dunn was involved in a second motor vehicle

accident in which she was the driver. An emergency room

physician noted that she complained of neck discomfort after the

accident, but that her motor function was normal. See i d . at

322. The physician diagnosed neck strain and discharged her;

cervical x-rays were negative.

In February 1995, Dunn was examined at the reguest of New

Hampshire Disability Determination Service ("DDS") by neurologist

Mildred LaFontaine, M.D. Dunn complained to Dr. LaFontaine of

leg pain, difficulty with her knees, and pain and weakness in her right arm. See i d . at 327. She told Dr. LaFontaine that she

always avoided lifting at work. She also complained of freguent

headaches, which she generally treated with Tylenol. See i d .

Dunn reported a history of depression, for which she had taken

Paxil6 until she lost her health insurance coverage.

Dr. LaFontaine's examination yielded the following results:

all of Dunn's joints, including her right shoulder, elbow, and

hand joints, appeared normal. See i d . at 328. Dunn had no

obvious spine deformity, her neck was supple, and she had an

"excellent" range of motion in her lumbar spine. There was some

effort-related weakness in all groups of the right upper

extremity and lower extremity in the range of 4 to 4+/5. Tone

appeared normal, gait and station were normal, and reflexes were

brisk.

Based on the examination. Dr. LaFontaine concluded that Dunn

did "not appear to have any obvious neurologic impairment despite

her neurocutaneous7 disease." I d . at 328. The doctor added, "I

am unable to demonstrate objective weakness, reflex impairment.

6 Paxil is an antidepressant medication. See Physicians' Desk Reference 2851 (52nd ed. 1998).

7 Neurocutaneous means "pertaining to the nerves and the skin; pertaining to the cutaneous nerves." Dorland's Illustrated Medical Dictionary 1128 (28th ed. 1994).

-7- or sensory loss." In March 1995, after reviewing records of

Dunn's past MRIs and related medical reports. Dr. LaFontaine

stated that the MRIs showed no involvement of the fibrous mass

with any adjacent structures, that there were no brain

abnormalities, and that there were no lumbar abnormalities. Dr.

LaFontaine concluded, "I do not see any evidence of neurological

impairment at this time," and found "no evidence that [Dunn was]

disabled from light duty work."

In May 1995, DDS sent Dunn for an orthopedic evaluation by

William Kilgus, M.D. According to Dr. Kilgus's report, Dunn

complained of occasional locking of the knee joints. Dr. Kilgus

found that knee x-rays showed no abnormalities and no evidence of

deterioration. Clinical examination revealed that Dunn was a

well-developed, well-nourished female in no acute distress. The

doctor observed that Dunn walked with a good gait and did not

list to either side. Examination of her knee joints showed a

good range of motion, only mild crepitus and no instability.

Dunn's guadriceps muscles were weakened bilaterally, and there

was no joint effusion. Dr. Kilgus diagnosed Dunn with "mild

chondromacia of the patellae bilaterally." I d . at 336. He

characterized her overall prognosis as "good," and recommended an

intensive course in physical therapy. The doctor concluded that Dunn had a full-time work capacity, but recommended that she

avoid work that required prolonged sitting or standing.

In November 1995, Dunn referred herself to the Twin Rivers

Counseling Center, where her presenting problems were " ' [m]ood

swings,'" "[r]apid and frequent shifts in affect," and

"[ i] irritability set off by 'little things.'" I d . at 338. Her

case history noted that these problems began six or seven years

earlier. Dunn reported that she lost her management position

after several of her employees complained about her behavior. A

mental status exam revealed that Dunn's mood seemed depressed

with "some neurovegetative signs of depression," such as

" [a]nhedonia8, lethargy and feelings of helplessness." I d . at

339. According to the center's intake report, Dunn's sleep and

appetite patterns were disturbed, she had a severely negative

self-image, she experienced marked shifts in affect with

irritability and explosiveness at times, she denied having

hallucinations, and she demonstrated no indications of thought

disorder. See i d . at 339-40. The center's report also stated

that Dunn seemed to have a negative self-image, that insight and

judgment were present, and that her intelligence appeared to be

8 Anhedonia is "the absence of pleasure from the performance of acts that would ordinarily be pleasurable." Stedman's Medical Dictionary 85 (25th ed. 1990) .

-9- in the average range. The report listed Dunn's coping ability

and personal resources (e.g., family, agencies, and significant

others) as strengths, and noted that she continued to care for

her children adeguately.

Based on these observations, Dunn was diagnosed as suffering

from a recurrent major depressive disorder. She paid three

additional visits to the counseling center during November 1995,

during which she reported some improvement, although she had some

trouble practicing the self-soothing technigues recommended by

the clinician.

At about the same time that she was visiting the counseling

center, Dunn was examined by psychiatrist Michael Evans, M.D., at

the reguest of DDS.9 Dunn told Dr. Evans that she was

uncomfortable sitting or standing for prolonged periods of time,

that she had been crying for no apparent reason for years, that

she was "moody," that she freguently became angry and frustrated

with people. See i d . at 343-44. Dunn also told Dr. Evans about

several occasions when she had lost her temper during the

previous summer. In the first episode, Dunn became so upset with

9 Although the parties' joint statement of material facts states that DDS reguested Dr. Evans to evaluate Dunn's mental status in December 1995, the doctor's medical report indicates that it was dictated on November 8, 1995 and transcribed on the following day. See Tr. at 342, 346.

-10- her husband during an argument that she attempted to hit him and

the family dog with her van. In the second incident, Dunn used a

knife to threaten her brother, who had come to live with the

family during the summer. Dunn informed Dr. Evans that she felt

that she was totally disabled due to chronic pain and weakness

related to her disease. The doctor noted, however, that

neurologic findings were not consistent with any progressive

disorder.

After examining Dunn, Dr. Evans noted that her affect was

"mildly sad," but that she did not show significant psychomotor

retardation or significant affective change. The doctor reported

that Dunn denied having hallucinations and suicidal or homicidal

thoughts, that she was oriented times three, that her short-term

and instantaneous memory was intact, and that she could perform

simple mathematics adeguately. Based on the examination. Dr.

Evans diagnosed dysthymia10 (Axis I); personality disorder, not

otherwise specified (Axis II); and neurofibromatosis,

nuerofibroma of the right axilla (Axis III). See i d . at 345.

10 Dysthymia is "a mood disorder characterized by depressed feeling . . . and loss of interest or pleasure in one's usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression." Dorland's Illustrated Medical Dictionary 519 (28th ed. 1994).

-11- The doctor noted that Dunn took care of her house, drove a car,

managed her children, shopped, cooked, paid her bills, and

maintained her residence, although this characterization of

Dunn's activities conflicts in some respects with those she

reported in her applications for benefits.11 Dr. Evans concluded

that Dunn could complete tasks, that she could understand and

follow simple written and oral instructions, and that she had

difficulty adapting to work situations. The doctor also noted

that Dunn was receiving no treatment at that time.

Dr. Evans completed a standard form assessing Dunn's mental

residual functional capacity. On that form, the doctor concluded

that Dunn had good ability to follow work rules, to use

judgement, to function independently, and to maintain

attention/concentration. Dunn also had good ability to

understand, remember and carry out complex instructions;

unlimited or very good ability to carry out non-complex and

simple job instructions; very good ability to maintain her

11 In her March 1989 application, Dunn stated that she cleaned and cooked meals, but that her husband did the shopping. See Tr. at 148. In an assessment of activities of daily life submitted to DDS in November 1994 as part of her current application, Dunn reported that she prepared meals; that her brother helped her with food shopping because she couldn't push the shopping cart or lift the food into or out of her car; and that various family members assisted her with household chores such as cleaning and laundry. See i d . at 284-85.

-12- personal appearance; and good ability to demonstrate reliability.

She had only fair ability, however, to relate to coworkers, to

deal with the public, to interact with supervisors, to deal with

stress at work, to behave in an emotionally stable manner, and to

relate predictably in social situations. Dr. Evans noted that

during the evaluation Dunn reported a long history of inability

to manage anger and poor tolerance of frustration, as well as

more recent difficulties with customers and fellow employees at

the pet store where she was last employed. He also noted that

Dunn had significant problems controlling her anger, had great

difficulty making social and emotional adjustments, and had

difficulty forming social relationships. See i d . at 350.

On November 22, 1995, Dunn saw Dr. Lawrence Rush, whose

speciality is internal medicine. See i d . at 352, 355. Dunn

complained to Dr. Rush of continuing right arm pain and

headaches. See i d . at 352. Dunn told Dr. Rush that in the past

her headaches occurred approximately once per week and were

treatable with Tylenol, but that during the previously year and a

half they had worsened to the point of occurring three to five

times per week. See i d . Dunn told the doctor that these more

freguent headaches were not ameliorated by Tylenol, but that they

were alleviated in some degree by Naprosyn, which she had taken

-13- when she still had health insurance. See i d . Dunn reported that

she was taking Prozac for "mood swings," and that she sometimes

had "crying attacks" and got angry or upset with her children.

I d . at 353. Dunn also complained of knee and leg pain. See i d .

Dr. Rush found Dunn's vital signs and physical examination

to be essentially unremarkable, other than the symptoms of her

neurofibromatosis and "perhaps a little bit of weakness in the

right upper extremity." I d . at 353-54. The doctor noted that

Dunn lacked access to medical care because she had no health

insurance since she stopped working in September 1994. He also

recommended that Dunn have a complete evaluation by a

neurologist. See i d . at 354.

In February 1996, Dunn was evaluated by neurologist

Alexander G. Reeves of the Hitchcock Clinic at the reguest of

DDS. Dr. Reeves found that Dunn's straight leg raising was

negative. He noted that MRIs of Dunn's spine demonstrated no

neurofibromatosis of the central axis, and that an MRI of her

brain did not demonstrate and any posterior fossa or other

masses. See i d . at 356. Dunn's motor screen was normal, her

sensory screen was normal, her reflexes were 2+ and symmetrical

in the upper extremities and 3+ and brisk at the knees and

ankles. Dr. Reeves noted that Dunn had "superficial

-14- neurofibromatosis and some involvement of her nerve trunks which

are symptomatic and, in particular, at the right brachial

plexus."

He concluded that her symptoms were "disabling,"

but that her neurological examination was "within normal limits."

I d . at 356-57. The doctor found that "objectively" Dunn had "no

neurological disability," but that she did have "subjective

disability . . . which is probably caused by neurofibromas

impinging on peripheral nerve branches." I d . at 357.

At the administrative hearings held before the ALJ, Dunn and

several other witnesses testified to the effects of Dunn's

alleged mental impairment on her ability to function in daily

life and on the job. At the September 11, 1995 hearing, Dunn

testified that her inability to handle stress had led to the

incidents of actual and/or threatened violence against her

husband and brother that she subseguently described to Dr. Evans.

See i d . at 86-88. Dunn also related an episode in which she had

lost control of her temper while working as a manager in a pet

store and had to leave the store. See i d . at 88-89. Dunn's

husband testified to the difficulties that Dunn's emotional or

mental problems had caused his wife both at work and at home.

See i d . at 93-95, 97-98. Cheryl Ackerson, who had worked with

Dunn at the pet store, described how Dunn's emotional outbursts

-15- and inability to handle stress had negatively effected her job

performance. See i d . at 99-103. At the second hearing, held

before the ALJ on August 20, 1996, Dunn's husband testified that

Dunn's "tremendous fear" prevented her from performing basic life

activities such as running errands. See i d . at 136.

II. 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

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) (per curiam);

(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.'" I d . (guoting

-16- Rodriquez 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.

1987) ("The [ALJ's] conclusions of law are reviewable by this

court."). I apply these standards in reviewing Dunn's case on

appeal.

III. DISCUSSION

The Social Security Act defines "disability" for the

purposes of both Title II and Title XVI as the "inability to

engage in 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."

(d)(1)(A) (1994). In evaluating whether

a claimant is disabled due to a physical or mental impairment, an

ALJ's analysis is governed by a five-step seguential evaluation

-17- process.12 See

, 416.920 (1999). The

Commissioner has provided an additional evaluation process that

an ALJ must apply when, as in the present case, a claimant

alleges a mental impairment. See

.1520a,

416.920a (1999). To determine the severity of a mental

impairment, an ALJ must rate the degree of functional loss in

four areas that the SSA has identified as essential to work: 1)

activities of daily living; 2) social functioning; 3)

concentration, persistence, or pace; and 4) deterioration or

decompensation in work or work-like settings. See

.1520a(b) (3), 416.920a(b) (3); Fiqueroa-Rodriquez v. Secretary

of Health and Human Servs.,

(1st Cir. 1988)

(per curiam). Absent significant evidence to the contrary, a

claimant's mental impairment can be presumed to be non-severe if

the degree of limitation caused by the impairment is "none" or

"slight" in the first and second of these essential areas,

"never" or "seldom" in the third area, and "never" in the fourth

12 In applying this analysis, the ALJ is reguired to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. See

, 416.920 (1999).

-18- area. See

.1520a(c) (1), 416.920(c) (1); Fiqueroa-

Rodriquez ,

.

In order to determine whether a claimant is disabled, an ALJ

must consider and evaluate all evidence, whether objective or

subjective, that is relevant to the claim. See Cotter v. Harris,

(3d Cir. 1981); Parker v. Harris,

(2d Cir. 1980). The SSA's regulations define "evidence" as

"anything [the claimant] or anyone else submits [to SSA] or that

[SSA] obtain[s] that relates to [the] claim."

(b), 416.912(b) (1999). Relevant evidence may include,

but is not limited to, the following types of information:

objective medical evidence; other evidence from medical sources;

statements about the claimant's impairment(s ) made by the

claimant or others, including testimony offered at administrative

hearings; and information from other sources, such as public and

private social welfare agencies, non-medical sources, and other

practitioners. See id.; see also

(e),

404.1528(a), 416.913(e), 416.928(a) (1999). If any of the

evidence in a case record is inconsistent, the ALJ must weigh the

conflicting evidence and decide which evidence to credit. See

(c) (2) , 416.927(c)(2) (1999).

In the present case, the ALJ's written decision indicates

-19- that he failed to consider and weigh the full range of evidence

relevant to Dunn's alleged mental impairment. The ALJ's brief

discussion of Dunn's mental impairment refers only to the

psychiatric consultative evaluation performed by Dr. Evans. See

Tr. at 27. The decision makes no mention of the other relevant

evidence of mental impairment contained in the case record, such

as the records from the Twin Rivers Counseling Center and the

testimony offered at the administrative hearings by Dunn, her

husband, and her coworker, in which the witnesses described

Dunn's mental impairment and its negative effects on her ability

to function.

Under SSA regulations, both the counseling center's records

and the hearing testimony constitute relevant, non-medical

evidence of mental impairment that the ALJ should have

considered. While a community counseling center does not gualify

as an "acceptable medical source" under the regulations, see

(a), 416.913(a), the SSA has expressly provided

that information "provided by programs such as community health

centers" is relevant documentation of a claimant's ability to

function and to tolerate stress. 20 C.F.R. P t . 404, Subpt. P,

A p p . 1, at 12.OOD. In this case, the center's evaluation of

Dunn's mental status was especially relevant because Dunn visited

-20- the center multiple times and because it was the only source that

provided treatment, as distinguished from an evaluation, for

Dunn's alleged mental impairment. The regulations also provide

that the effects of a claimed mental impairment may be

demonstrated by information provided by family members or others

"who have knowledge of an individual's functioning."

The

testimony offered by Dunn's husband and co-worker clearly

constitutes such information.13 Finally, while Dunn's subjective

testimony that she suffered symptoms of mental impairment is not

sufficient in itself to establish the existence of a mental

impairment, it is probative evidence that the ALJ should have

assessed for credibility. See

(a),

416.92 8(a); 20 C.F.R. Pt. 404, Subpt. P, App. 1, at 12.0OB; Gray

v. Heckler,

(1st Cir. 1985) (per curiam);

Alvarado v. Weinberger,

(1st Cir. 1975) (per

curiam).

While the ALJ was free to discredit the evidence provided by

13 An SSA Program Policy Statement, which deals with the assessment of residual functional capacity for claimants with mental impairments, similarly provides that "[t]o arrive at an overall assessment of the effects of mental impairment, relevant, reliable information, obtained from third party sources such as social workers, . . . family members, and staff members of . . . mental health centers, and community centers, may be valuable." SSR 85-16,

, at *4 (1985) (emphasis added).

-21- the counseling center and by witnesses at the hearings, he was

not free to "simply ignore, as he did here, the 'body of evidence

opposed to [his] view.'" Diaz v. Secretary of Health and Human

Servs.,

(D.P.R. 1992) (guoting Universal

Camera Corp. v. NLRB,

(1951)); see also Pedis

v. Chater,

(D. Mass. 1997) (same). An ALJ is

under no obligation "to expressly refer to each document in the

record, piece-by-piece." Rodriguez v. Secretary of Health and

Human Servs.,

, No. 90-1039,

(1st Cir. Sept. 11, 1990) (table, text available on Westlaw); see

also NLRB v. Beverly Enterprises-Massachusetts, Inc.,

(1st Cir. 1999) (enforcing administrative order in labor

context); Miles v. Harris,

(2d Cir. 1981)

("[W]e are unwilling to reguire an ALJ explicitly to reconcile

every conflicting shred of medical testimony . . . ."). However,

for a reviewing court to be satisfied that an ALJ's finding was

supported by substantial evidence, that finding "'must take into

account whatever in the record fairly detracts from its weight.'"

Diaz,

(guoting Universal Camera,

). In the present case, because the ALJ's decision failed to

even mention -- let alone evaluate -- evidence that may have

favored Dunn's claim of mental impairment, it is impossible to

-22- determine whether this evidence was implicitly discredited or

instead was simply overlooked.14 See Smith v. Heckler,

(8th Cir. 1984); Cotter,

; Nquven v.

Callahan,

(D. Mass. 1998); see also

Williams ex rel. Williams v. Bowen,

(2d Cir.

1988) (concluding that ALJ's decision was "fatally undermine[d]"

by ALJ's failure to mention and evaluate testimony by claimant

and family member).

In addition, the ALJ's decision affirmatively

mischaracterized the evidence of mental impairment contained in

the record. The decision stated that "[t]here is no evidence in

the case record of a psychiatric impairment other than

dysthymia." Tr. at 27. This statement was inaccurate in that it

denied the existence of evidence, such as the report from the

Twin Rivers Counseling Center, suggesting that Dunn suffered from

a major depressive disorder. The ALJ may not selectively extract

14 The ALJ also found that "Dunn has not deteriorated or decompensated in a work or work-like setting," Tr. at 27, without acknowledging or explicitly discrediting testimony, offered at the September 11, 1995 administrative hearing, in which Dunn was described as suffering from decompensation in the work setting. See i d . at 88-89, 101-03. Once again, while the ALJ may choose to discredit such testimony, the decision makes it impossible to determine whether this evidence was ignored or weighed and found not to be credible.

-23- certain pieces of evidence from the record while simultaneously

ignoring other, potentially contradictory, pieces of evidence.

See Nquven,

; Miller v. Bowen,

(D. Kan. 1988); Claassen v. Heckler,

(D. Kan. 1985); Alvarez v. Califano,

(E.D. Pa. 1980) .

The ALJ's apparent failure to weigh other relevant evidence

of mental impairment is particularly troubling in this case

because the ALJ found that Dunn's mental impairment was non-

severe at the second step of the five-step seguential evaluation

process. See

(c), 416.920(c). An

impairment should be considered non-severe only if it does not

significantly limit a claimant's physical or mental ability to do

basic work activities. See McDonald v. Secretary of Health and

Human Servs.,

, 1121 n.3, 1124-25 (1st Cir. 1986);

(a), 416.921(a). Because the severity step

is essentially a threshold reguirement devised to screen out

insubstantial claims, see Bowen v. Yuckert,

(1987); McDonald,

, an ALJ should take special

care to evaluate all relevant evidence before finding an

impairment nonsevere. In this case, I cannot ignore the

possibility that the ALJ's failure to accurately assess all

-24- relevant evidence of mental impairment at the severity stage led

to a failure to properly consider the total limiting effects of

Dunn's mental and physical impairments when determining her RFC

and when deciding at step 4 that Dunn could perform her past

relevant work. See

, 404.1545(e), 416.923,

416.945(e) (1999) .

Finally, the ALJ's discussion of Dunn's mental impairment

suffers from an internal contradiction that in itself indicates

the need for further explication. The decision states that Dunn

"has not undergone treatment" for what the ALJ concluded was a

"dysthymic disorder." Tr. at 27. At the same time, however, the

ALJ states that in the past Dunn has taken Prozac and Valium to

successfully control her dysthymia. See Tr. at 27. Although the

record contains references to Dunn's use of Prozac and other

medications for depression, see i d . at 286, 315, 327, 352, it

does not provide a clear indication of when the medications were

prescribed, who proscribed them, or whether they were successful

in alleviating her symptoms. On remand, the ALJ may choose to

seek additional evidence to address these issues.

IV. CONCLUSION

The Social Security Act charges the ALJ with responsibility

for judging credibility and resolving conflicting evidence. See

-25- Irlanda Ortiz,

. While an ALJ's findings are

conclusive when supported by substantial evidence, they are not

conclusive "when derived by ignoring evidence." Nguyen v.

Chater,

(1st Cir. 1999) (per curiam). When an

ALJ "fail[s] to base his decision on the entire administrative

record and evidence as a whole," there is good cause for remand.

Ortiz v. Apfel,

(D.P.R. 1999); see also

Nguven,

; Crosby v. Heckler,

(D. Mass. 1985). Because the ALJ in this case reached

his conclusion by ignoring and selectively extracting relevant

evidence, and because his decision contains unexplained

contradictions, I am unable to conclude that the decision is

supported by substantial evidence. Accordingly, I vacate the

ALJ's decision and remand this case with instructions that, in

reaching a new decision, the ALJ consider all evidence relevant

to Dunn's mental impairment, developing additional evidence if he

deems supplementation of the record to be necessary.

SO ORDERED.

Paul Barbadoro Chief Judge

December 10, 1999

cc: Raymond Kelly, Esg.

-26- David Broderick, Esq.

-27-