George Barrett v. SSA CV-01-371-B 03/28/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

George Barrett

v. Civil No. 01-371-B Opinion No.

Jo Anne B. Barnhart

MEMORANDUM AND ORDER

On April 3, 2000, George Barrett filed an application with

the Social Security Administration ("SSA") for Title II

disability insurance benefits ("DIB"). The SSA initially denied

his application. Barrett elected to bypass reconsideration of

this initial decision and requested a hearing. Administrative

law judge ("ALJ"), Frederick Harap, held a hearing, and on

February 20, 2001, determined that Barrett was not disabled.

Barrett appealed, but on July 27, 2001, the Appeals Council

denied his request for review.

Barrett brings this action pursuant to

(g)

(1991 & Supp. 2002), seeking review of the denial of his application for DIB. Barrett argues that: (1) the ALJ failed to

follow procedural requirements when evaluating Barrett's mental

impairment; (2) the ALJ's decision regarding Barrett's RFC is

unsupported by substantial evidence; and (3) the ALJ's finding

that the claimant lacked credibility is unsupported by

substantial evidence.

I. BACKGROUND

A. Barrett's Education and Work History

Barrett was 58 years old when he filed his application for

DIB on April 3, 2000. He has an eighth grade education, but is

functionally illiterate. Barrett's work experience includes

assembly work in the shoemaking industry, general labor, and

janitorial work. He left his last position as a janitor in 1989,

when he contends he became disabled and could no longer work.1

Since 1989, Barrett has worked as much as twenty hours per week

as a packer and assembler in a sheltered work setting. This work

does not constitute substantial gainful activity. See 20 C.F.R.

404.1571 et se^. (2002) .

1 At the ALJ hearing, Barrett requested that his onset date of disability be changed to December 31, 1994.

- 2 - B. Medical Evidence

Barrett's medical history begins in 1962, when he was

transferred from jail to the New Hampshire State Hospital on a

"regular order of commitment." Record at 83. State Hospital

records indicate that Barrett's I.Q. score was 83, which

classified him as mildly mentally deficient. Eventually, Barrett

was granted "full ground privileges" at the State Hospital,

secured employment at a local mill, and was discharged on June 9,

1967. There is nothing in the record regarding Barrett's medical

history from 1967 to 1999.

On July 6, 1999, Barrett sought medical treatment at

Catholic Medical Center for nervousness and a hissing sound in

his right ear. His ear was occluded with ear wax and was

irrigated. Although the primary treatment related to his ear,

Barrett was proscribed Ativan for his nervousness.2

On July 20, 1999, Barrett began treatment at the Manchester

Community Health Center. Again, his primary complaint was

hissing in his ear, but he also reported problems with anxiety.

2 Ativan is an anti-anxiety agent. Physician's Desk Reference at 3348 (53rd ed. 2001) .

- 3 - Barrett was continued on anti-anxiety medication. However, on

his second visit to the Center, Dr. Gavin Muir noted that Barrett

lacked an underlying diagnosis regarding his anxiety. He

referred Barrett to Manchester Mental Health. Barrett was

examined by Dr. Larry Politz at Manchester Mental Health. Dr.

Politz assessed him as having "some sort of underlying anxiety

disorder." Record at 133. Dr. Muir continued treating Barrett

with Ativan, and noted that if he developed further problems,

long term care at the Center would be appropriate.

Muir again referred Barrett to Manchester Mental Health, and

on May 1, 2000, a report regarding Barrett's condition was

completed by Dr. Daniel Potenza and Debra Grages, R.N. The

report indicated that Barrett did not suffer from any overt

psychosis, but that he displayed below normal to normal

intelligence. Barrett reported that people made him anxious and

that his depression interfered with his ability to work. Barrett

indicated that these symptoms had worsened over time. However,

Barrett also stated that he had good relationships with his wife

and children, had lots of friends, and generally got along well

with others. The report ruled out anxiety disorder as a cause of

Barrett's reported symptoms of anxiety and depression.

- 4 - The report also noted that although Barrett was "trying to

make a case around his anxiety and depression that would disable

him for Social Security Benefits," the report ultimately ruled

out malingering. Record at 154. In conclusion, the report

diagnosed Barrett as suffering from "Personality Disorder with

Antisocial Traits." Record at 157. It also stated that it was

"unclear" to what extent Barrett's functioning was impaired in

regard to his reported symptoms of anxiety and depression.

Record at 158. These self-reported symptoms, the report said,

"will need careful evaluation."

Upon the reguest of his attorney, Barrett underwent a

psychological examination by Dr. Brian Rines. Dr. Rines's

report, dated December 12, 2000, concluded that Barrett had the

mental functioning of a twelve year old and was functionally

illiterate. Dr. Rines suggested that Barrett would find it

nearly impossible to follow simple verbal instructions, think

abstractly, or shift cognitive routines. Dr. Rines opined that

Barrett would most likely put off or threaten others with his

actions, given his lack of judgment and insight. In conclusion.

Dr. Rines diagnosed Barrett as suffering from anxiety disorder

with social phobia, personality change associated with his

- 5 - youthful head injury, mixed personality disorder with

narcissistic, histrionic, and schizotypal features. Record at

166. According to Dr. Rines, Barrett was incapable of

substantial gainful activity beyond that of sheltered workshops.

C. PRTF and RFC Assessment By Disability Determination Services

On April 20, 2000, Dr. Craig Stenslie of the Disability

Determination Services ("DDS") completed a psychiatric review

technigue form ("PRTF") for Barrett pursuant to 20 C.F.R. § 1520a

(2002). Dr. Stenslie reviewed Dr. Muir's clinical notes and

concluded that there was "insufficient [medical evidence] of any

determinable impairment - physical or mental." Record at 136,

137. This report was generated before Barrett was evaluated and

diagnosed with personality disorder by both Manchester Mental

Health and Dr. Rines.

On April 27, 2000, SSA medical consultant Joan Turnell

completed a residual functional capacity assessment ("RFC") for

Barrett. The RFC stated that no primary diagnosis had been

established and that "there is insufficient medical evidence of

any impairment which would have prevented full-time work activity

by claimant." Record at 152. Again, this report was generated

before Barrett's diagnosis from Manchester Mental Health and Dr.

- 6 - Rines .

D. ALJ's Decision

The ALJ applied the five-step sequential evaluation process

under which disability applications are reviewed. See

(2002). The ALJ foundthat Barrett carried his burden

sufficiently at each of the firstthree steps in the process. At

step four, however, the ALJ foundthat Barrett was not disabled

because he retained the residual functioning capacity to return

to the type of work he had performed in the past.

Specifically, the ALJ found that Barrett had "borderline

intellectual functioning and anxiety disorder, impairments which

are severe but which do not meet or equal the criteria of any of

the impairments listed in [the regulations]." Record at 18. The

ALJ noted that "[n]o treating or examining physician has

mentioned findings equivalent in severity to the criteria of any

listed impairment." Record at 15. Accordingly, the ALJ did not

complete a PRTF. The ALJ made no mention of Dr. Potenza's or Dr.

Rine's diagnosis of personality disorder. The ALJ also

discredited Barrett's subjective reports of anxiety and

depression and their effect upon his ability to work. He found

these self-reports "not entirely credible" in light of Barrett's

- 7 - description of his activities and lifestyle, and Dr. Potenza's

report, which indicated that Barrett was manipulative.

The ALJ found that Barrett's "borderline intellectual

functioning" did not prevent him from maintaining a thirty-year

marriage and fostering good relationships with his children and

grandchildren. Record at 17. Furthermore, the ALJ found that

Barrett's work history indicated an ability to perform simple

labor jobs and that there was "no indication in the file of a

worsening of his condition which would preclude him from

returning to any of his past work."

Because Barrett's

mental deficiencies did not hinder his ability to carry out past

work activities, the ALJ concluded that Barrett was able to

return to the type of work he had performed in the past on the

date his insured status expired.

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 review the pleadings submitted

by the parties and the transcript of the administrative record

and enter a judgment affirming, modifying, or reversing the Commissioner's decision. See

(g). The court's

review is limited in scope, however, as the Commissioner's

factual findings are conclusive only if they are supported by

substantial evidence. See id.; Irlanda Ortiz v. Sec'v of Health

& Human Servs.,

(1st Cir. 1991). The

Commissioner is responsible for settling credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence. See Irlanda Ortiz,

;

Frustaglia v. Sec'v of Health & Human Servs.,

(1st Cir. 1987); see also Tsarelka v. Sec'v of Health & Human

Servs.,

(1st Cir. 1988) ("[W]e must uphold the

[C]ommissioner's conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.") (citations omitted). Therefore, the

court must "'uphold the [Commissioner's] findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adeguate to support [the Commissioner's]

conclusion.'" Irlanda Ortiz,

(guoting Rodriquez

v. Sec'v of Health & Human Servs.,

(1st Cir. While the ALJ's findings of fact are conclusive when

supported by substantial evidence, they "are not conclusive when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts." Nquven v. Charter,

(1st Cir. 1999) (per curiam) (citations omitted). If the

Commissioner has misapplied the law or has failed to provide a

fair hearing, however, deference to the Commissioner's decision

is not appropriate, and remand for further development of the

record may be necessary. See Carroll v. Sec'v of Health & Human

Servs.,

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

Sec'v of Health & Human Servs.,

(1st Cir. 1987)

("The [Commissioner's] conclusions of law are reviewable by this

court.") I apply these standards in reviewing the issues Barrett

raises on appeal.

III. DISCUSSION

Under the Social Security Act (the "Act"), an individual

seeking DIB is "disabled" if he or she is unable "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 has lasted or can be expected to last for a

- 10 - continuous period of not less than 12 months."

(d)(1)(A) (1991 & Supp. 2002). The Act instructs the ALJ to

apply a five-step sequential analysis to determine whether a

claimant is disabled.3

_____ At step four, the ALJ must determine whether the claimant's

impairment prevents him from performing his past work. See 20

C.F.R § 404.1520(e)(2002). In making this determination, the ALJ

must assess both the claimant's RFC, that is, what the claimant

can do despite his impairments, and the demands of the claimant's

prior employment. See id.;

(a) (2002); see

also Santiago v. Sec'v of Health & Human Servs.,

(1st Cir. 1991) (per curiam). At this step, the claimant bears

the burden of showing that he does not have the RFC to perform

his former type of work. See Santiago,

.

At step five, the burden shifts to the Commissioner to show

"that there are jobs in the national economy that [the] claimant

3 The five-step sequential analysis requires the ALJ 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 equals 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

(2002) .

- 11 - can perform." Heggartv v. Sullivan,

(1st Cir.

1991)(per curiam). The Commissioner must show that the

claimant's limitations do not prevent him from engaging in

substantial gainful work, but need not show that the claimant

could actually find a job. See Keating v. Sec'v of Health &

Human Servs.,

(1st Cir. 1988) .

In this case, the ALJ concluded at step four of the

seguential evaluation process that Barrett was able to perform

his past relevant work prior to his date last insured. Barrett

argues that the decision must be reversed and remanded because it

is tainted by error. First, Barrett argues that the ALJ violated

(h) (2002) by failing to ensure that "every

reasonable effort" was undertaken to obtain a review by a

gualified psychiatrist or psychologist of his alleged mental

impairments. Barrett contends that the ALJ failed to complete a

PRTF, as mandated by

.1520a (2002), and failed to

reguest a consultative examination, see

(f)

(2002); 404.1517 (2002), or otherwise ensure that an adeguate

record was developed. Second, Barrett argues that because of

these procedural errors and the ALJ's failure to give proper

weight to Dr. Rines's report, the ALJ's decision is not supported

- 12 - by substantial evidence. Lastly, Barrett contends that the ALJ

failed to adhere to the requirements of SSR 96-7p when assessing

his credibility. I agree with Barrett's first argument and

remand the case on this basis.

The claimant is responsible for providing specific medical

evidence of his alleged mental impairment and its effect upon his

functional capacity for work. See

(a) (2002);

Gray v. Heckler, 760 F2d 369, 375 (1st Cir. 1985). However, the

ALJ is responsible for ensuring that "an adequate record is

developed during the disability hearing consistent with the

issues raised." Hawkins v. Chater,

(10th

Cir. 1997)(quotation omitted). Where it is within the power of

the ALJ "without undue effort," he must fill in an undeveloped

record "where there are gaps in the evidence necessary to a

reasoned evaluation of the claim." Heggartv,

(quotation omitted).

Barrett correctly notes that an ALJ must complete a PRTF

when the Commissioner determines that the claimant suffers from a

mental impairment which falls under those listed in 20 C.F.R. Pt.

404, Subpt. P, App.l, P t . A ("Part A" ) . This requirement does

not apply to mental impairments which do not fall within Part A.

- 13 - See

.1520a (b) (".If we determine that you have a

medically determinable mental impairment(s), we must specify the

symptoms, signs, and laboratory findings that substantiate the

presence of the impairment(s) and document our findings in [a

PRTF].") (emphasis added). When a claimant's mental impairment

does not meet or egual the criteria of the listings, but is

nevertheless significant, the ALJ is still reguired to evaluate

the claimant's mental RFC. See Part A at § 12(A).

About two weeks after Barrett filed his application for DIB,

a PRTF was completed by Dr. Stenslie of DDS. Dr. Stenslie

concluded that there was insufficient medical evidence of any

impairment which would preclude Barrett from work activity.

However, this PRTF was completed prior to Barrett's evaluation

and subseguent personality disorder diagnosis at Manchester

Mental Health. An RFC completed by a DDS medical consultant

prior to Dr. Potenza's diagnosis echoed the conclusions found in

the PRTF.

Although the ALJ had before him the PRTF, RFC, and Dr.

Potenza's report, the ALJ concluded that"[t]he claimant has no

impairment which meets the criteria of any of the listed

impairments described in Appendix 1 of the Regulations (20 C.F.R.

- 14 - Part 404, Subpart P, Appendix 1). No treating or examining

physician has mentioned findings equivalent in severity to the

criteria of any listed impairment." Record at 15, 18 (emphasis

added). This finding is flatly contradicted by Dr. Potenza's

diagnosis that Barrett suffered from personality disorder. Dr.

Potenza's report uneguivocally diagnosed Barrett as suffering

from personality disorder, an impairment expressly listed under

Part A of the regulations. See Part A at § 12.08. Furthermore,

the ALJ relied upon Dr. Potenza's report when he assessed

Barrett's mental impairments and RFC. Indeed, the ALJ chose to

give controlling weight to the report over Dr. Rines' subseguent

examination and evaluation of Barrett. Therefore, the ALJ's

determination that Barrett's illness did not fall within the

listed impairments of the regulations is internally inconsistent

with his adoption of Dr. Potenza's report. I also note that the

ALJ's decision fails to recognize Dr. Potenza's diagnosis of

personality disorder and, instead, focuses solely upon Barrett's

mental deficiency and anxiety. Thus, the ALJ's decision is

further flawed because it simply overlooks the personality

disorder and whether it necessitated a PRTF.

- 15 - The Commissioner argues that Dr. Stenslie's PRTF indicates

that Barrett did not suffer from a medically determinable

impairment. Thus, either the ALJ's obligation to perform a PRTF

was satisfied by Dr. Stenslie's completion of the form or,

presumably, no PRTF was necessary because Barrett's alleged

illness was not listed in Part A. I reject these arguments. Dr.

Stenslie's PRTF did not relieve the ALJ of his duty to complete a

PRTF and to otherwise ensure that an adeguate record was

developed "where there [were] gaps in the evidence necessary to a

reasoned evaluation of the claim." Heggartv,

(citations omitted). Here, the record is devoid of any PRTF

regarding the severity of Barrett's diagnosed personality

disorder. As it stands, the ALJ's decision gives controlling

weight to Dr. Potenza's report, yet it makes no mention of

Barrett's personality disorder.

Accordingly, the ALJ was obligated to complete a PRTF and

assess the severity of Barrett's personality disorder. See

.1520a; Part A at § 12.08(A) and (B). His failure to

do so and to attach the PRTF to his decision warrants remand to

the SSA. See Gutierrez v. Apfel,

(9th Cir.

2000); Plummer v. Apfel,

(3rd Cir. 1999);

- 16 - Stambaugh v. Sullivan,

(7th Cir. 1991) .

Furthermore, the ALJ failed to take all reasonable efforts to

ensure that an adequate record was developed regarding Barrett's

personality disorder.

IV. CONCLUSION

When a court finds that the administrative record is

incomplete, a court should vacate the Commissioner's decision and

remand the matter for further proceedings consistent with the

reasoning in its opinion. See

(g); Seavev v.

Barnhart

(1st Cir. 2001). Accordingly, I

vacate the judgment denying Barrett benefits, pursuant to

sentence four of

(g), and remand this matter to

the Commissioner for further proceedings consistent with this

Memorandum and Order. The Commissioner should take all

reasonable efforts to ensure that an adequate record is generated

regarding the severity of Barrett's personality disorder, and

whether and to what extent this alleged mental disorder impaired

his ability to function.

I grant Barrett's motion for an order remanding the decision

of the Commissioner (Doc No. 11), and deny the defendant's motion

- 17 - for order affirming the decision of the Commissioner (Doc. No.

13) .

SO ORDERED.

Paul Barbadoro Chief Judge

March 28, 2003

cc: Francis Jackson, Esg. Dennis Bezanson, Esg. David Broderick, Esg.

- 18 -