Palermo v . SSA CV-02-259-M 07/16/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Erica L . Palermo, Claimant

v. Civil N o . 02-259-M Opinion N o .

JoAnne B . Barnhart, Commissioner, Social Security Administration, Respondent

O R D E R

Pursuant to

(g), claimant, Erica L . Palermo,

moves to reverse the Commissioner’s decision denying her

application for Social Security disability insurance benefits,

under Title II of the Social Security Act,

. The

Commissioner, in turn, moves for an order affirming her decision.

For the reasons given below, the matter is remanded to the

Administrative Law Judge (“ALJ”) for further proceedings

consistent with this opinion.

Standard of Review

The applicable standard of review in this case provides, in

pertinent part: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive

(g) (setting out the standard of review for DIB

decisions). However, the court “must uphold a denial of social

security disability benefits unless ‘the [Commissioner] has

committed a legal or factual error in evaluating a particular

claim.’” Manso-Pizarro v . Sec’y of HHS,

5 , 16 (1st Cir.

1996) (quoting Sullivan v . Hudson,

7 7 , 885 (1989)).

Background

The parties have submitted a Joint Statement of Material

Facts (document n o . 1 2 ) , which is part of the court’s record.

The facts included in that statement are not recited here, en

masse, but will be referred to as necessary.

Claimant’s insured status expired on September 3 0 , 1994.

On April 2 7 , 2000, she filed an application for Social Security

disability insurance benefits, claiming that she had become

2 disabled, as a result of bipolar disorder, on September 2 8 , 1990.

During the consideration of claimant’s application, a Psychiatric

Review Technique form (“PTRF”) was completed. (Administrative

Transcript (“Tr.) at 223-231.) According to the evaluator who

completed the PTRF, claimant suffered from bipolar syndrome, an

affective disorder. However, the evaluator determined that there

was insufficient evidence to evaluate the functional limitations

that would have defined the severity of claimant’s impairment.

On September 1 1 , 2001, a hearing was held before an ALJ. In

the body of his decision, dated November 2 9 , 2001, the ALJ

discussed the medical evidence in the record at some length and

in some detail. But he did not mention the Psychiatric Review

Technique form, nor did he frame his analysis in terms of the

technique for evaluating mental impairments set out in

.1520a. The ALJ’s decision concludes with a set of formal

findings, including the following:

3. The medical evidence establishes that on the date her insured status expired the claimant had bipolar disorder, an impairment which is severe but which does not meet or equal the criteria of any of the impairments listed in Appendix 1 , Subpart P, Regulations N o . 4 .

3 (Tr. at 24-25.)

Discussion

While claimant’s brief is not as clear as it might be, 1 she

appears to argue that the ALJ’s decision should be reversed, and

she should be awarded benefits, because the ALJ: ( 1 ) determined,

incorrectly, that her condition did not meet or equal any listed

impairment; (2) found, without substantial evidence, that

claimant had the residual functional capacity to perform jobs

that involved occasional interaction (up to two and one half

hours per day) with co-workers; (3) determined, incorrectly, that

claimant was capable of performing the jobs of office helper and

cleaner, when both involved production quotas; and (4) failed to

consider claimant’s agoraphobia, which limited the availability

of the jobs mentioned by the vocational expert to less than

significant numbers. The Commissioner disagrees, categorically.

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; ( 2 ) not have reached

1 The brief is also single-spaced, contrary to LR 5.1(a), which requires all filings to be double-spaced.

4 retirement age; (3) have filed an application; and (4) be under a

disability.

(a)(1)(A)-(D). The only question in

this case is whether claimant was under a disability at any time

before September 3 0 , 1994, the date on which her insured status

expired.

For the purpose of determining eligibility for disability

insurance benefits,

[t]he term “disability” means . . . 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). Moreover,

[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists

5 in significant numbers either in the region where such individual lives or in several regions of the country.

(d)(2)(A).

In order to determine whether a claimant is disabled for the

purpose of determining eligibility for disability insurance

benefits, an ALJ is required to employ a five-step process. See

.

The steps are: 1 ) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2 ) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3 ) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4 ) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5 ) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v . Barnhard,

, 5 (1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

6 The claimant bears the burden of proving that she is

disabled. See Bowen v . Yuckert,

3 7 , 146 (1987). She

must do so by a preponderance of the evidence. See Mandziej v .

Chater,

2 1 , 129 (D.N.H. 1996) (citing Paone v .

Schweiker,

0 8 , 810-11) (D. Mass. 1982)). Finally,

In assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) plaintiff’s subjective claims of pain and disability as supported by the testimony of the plaintiff or other witness; and (3) the plaintiff’s educational background, age, and work experience.

Mandziej,

(citing Avery v . Sec’y of HHS,

9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,

, 6 (1st Cir. 1982)).

Claimant argues that the ALJ’s decision should be reversed,

and she should be awarded benefits, because the ALJ incorrectly

determined that her condition did not meet or equal a listed

impairment. More specifically, claimant argues that, from

September 2 8 , 1990, through September 3 0 , 1994, her condition met

the requirements set out in

0 4 , subpt. P, App. 1 ,

P t . A , secs. 12.04(A)(1) & ( B ) .

7 There is a problem with the ALJ’s step-three determination,

but not one that leads necessarily to an award of benefits. The

ALJ did not refer to the Psychiatric Review Technique form in the

record, and did not frame his step-three analysis in terms of the

technique set out therein.

At the initial and reconsideration levels of the administrative review process, [the Social Security Administration (“SSA”)] will complete a standard document to record how [it] applied the [special] technique [for evaluating the severity of mental impairments]. At the administrative law judge hearing . . . level[] [the ALJ] will document application of the technique in the decision.

.1520a(e). Furthermore, “[a]t the administrative

law judge hearing . . . level[], the written decision issued by

the administrative law judge . . . must incorporate the pertinent

findings and conclusions based on the technique.”

.1520a(e)(2). Here, the ALJ conducted an analysis of the

medical evidence, but did not document application of the

required psychiatric review technique in his decision.

Overlooking the requirements of

.1520a(e) amounts

to legal error necessitating remand. On remand, the ALJ should

frame a step-three analysis that documents application of the

8 psychiatric review technique and that incorporates the findings

listed in the form that was completed and included in the record.

Conclusion

For the reasons given, claimant’s motion to reverse the

ALJ’s decision (document n o . 10) is denied, as is the

Commissioner’s motion for an order affirming the ALJ’s decision

(document n o . 1 1 ) . However, because the ALJ’s decision did not

properly document application of the psychiatric review

technique, it is appropriate to remand the matter.

Pursuant to sentence four of

(g), this matter

is remanded to the ALJ for further proceedings. The Clerk of the

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 1 6 , 2003

9 cc: Bradley M . Lown, Esq. David L . Broderick, Esq.

10