Weatherbee v . SSA CV-03-076-M 01/07/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Elaine C . Weatherbee, Claimant

v. Civil N o . 03-76-M Opinion N o .

Jo Ann B . Barnhart, Commissioner, Social Security Administration, Respondent

O R D E R

Pursuant to

(g), claimant, Elaine Weatherbee,

moves to reverse the Commissioner’s decision denying her

applications for Social Security Disability Insurance Benefits

and Supplemental Security Income Payments under Titles II and

XVI, respectively, of the Social Security Act,

,

1382 (the “Act”). Respondent objects and moves for an order

affirming her decision.

For the reasons set forth below, the matter is remanded to

the Administrative Law Judge (“ALJ”) for further proceedings

consistent with this opinion. Factual Background

I. Procedural History.

In November of 1999, claimant filed applications for

disability insurance benefits and supplemental security income

payments, alleging that on September 1 , 1997, she became disabled

due to depression, anxiety, and Post Traumatic Stress Disorder

(“PTSD”). The Social Security Administration denied her

application initially and on reconsideration.

On November 2 , 2001, claimant, appearing pro s e , and a

vocational expert appeared before an ALJ who considered her

claims de novo. The ALJ issued his order on March 2 8 , 2002,

concluding that claimant was subject to some non-exertional

limitations and incapable of returning to her past relevant work.

Nevertheless, the ALJ concluded that claimant was able to perform

work that exists in significant numbers in the national economy

and was not, therefore, disabled. The Appeals Council denied

claimant’s request for review, thereby rendering the ALJ’s

decision the final decision of the Commissioner.

2 In response, claimant filed this timely action, asserting

that the ALJ’s decision was not supported by substantial evidence

and seeking a judicial determination that she is disabled within

the meaning of the Act. She then filed a “Motion for Order

Reversing the Decision of the Commissioner” (document n o . 6 ) .

The Commissioner objected and filed a “Motion for Order Affirming

the Decision of the Commissioner” (document n o . 7 ) . Those

motions are pending.

II. Stipulated Facts.

Pursuant to Local Rule 9.1(d), the parties have submitted a

comprehensive statement of stipulated facts which, because it is

part of the court’s record (document n o . 8 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. Properly Supported Factual Findings by the ALJ are Entitled to Deference.

Pursuant to

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

3 Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence. See

(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &

Human Services,

(1st Cir. 1991). 1 Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position.

See Tsarelka v . Secretary of Health & Human Services,

(1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a different

conclusion, so long as it is supported by substantial

evidence.”). See also Gwathney v . Chater,

, 1045

(8th Cir. 1997) (The court “must consider both evidence that

supports and evidence that detracts from the [Commissioner’s]

decision, but [the court] may not reverse merely because

substantial evidence exists for the opposite decision.”);

1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB,

9 7 , 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n.,

0 7 , 620 (1966).

4 Andrews v . Shalala,

(9th Cir. 1995) (The

court “must uphold the ALJ’s decision where the evidence is

susceptible to more than one rational interpretation.”).

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v . Secretary

of Health & Human Services,

7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker,

9 , 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts.” Irlanda Ortiz,

.

Accordingly, the court will give deference to the ALJ’s

credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v . Secretary of Health & Human Services,

9 2 ,

195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

5 II. The Parties’ Respective Burdens.

An individual seeking Social Security disability benefits is

disabled under the Act 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

continuous period of not less than 12 months.”

(i)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v . Yuckert,

3 7 , 146-47 (1987); Santiago v . Secretary of Health & Human

Services,

, 5 (1st Cir. 1991). To satisfy that burden,

the claimant must prove that her impairment prevents her from

performing her former type of work. See Gray v . Heckler,

(1st Cir. 1985) (citing Goodermote v . Secretary of

Health & Human Services,

, 7 (1st Cir. 1982)).

Nevertheless, the claimant is not required to establish a doubt-

free claim. The initial burden is satisfied by the usual civil

standard: a “preponderance of the evidence.” See Paone v .

Schweiker,

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

6 In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective assertions of pain

and disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v . Secretary of

Health & Human Services,

9 , 23 (1st Cir. 1986);

Goodermote,

. Provided the claimant has shown an

inability to perform her previous work, the burden shifts to the

Commissioner to show that there are other jobs in the national

economy that she can perform. See Vazquez v . Secretary of Health

& Human Services,

, 2 (1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v . Weinberger,

(1st Cir. 1974); Benko v . Schweiker,

9 8 ,

701 (D.N.H. 1982).

When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

7 (1) whether the claimant i s 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 also

. Ultimately,

a claimant is disabled only if her:

physical or mental impairment or impairments are of such severity that [s]he 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 [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm the

determination that claimant is not disabled.

8 Discussion

I. Background - The ALJ’s Findings.

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in

and 416.920. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since September 1 , 1997 (her alleged onset of disability). Next,

the ALJ concluded that the medical evidence of record indicates

that, from September 1 , 1997, through January 1 6 , 2001, the

claimant suffered from alcohol abuse and alcohol-related mood

disorder. From January 1 6 , 2001, however, the ALJ concluded that

claimant had remained sober and her alcohol-related mood disorder

was no longer a severe impairment (though he did recognize that

claimant continued to suffer bouts of depression and anxiety).

In reaching his decision, the ALJ considered, but rejected,

various material contained in claimant’s medical records.

I accord no probative weight to the diagnosis of bipolar disorder made by Kristen Lee, M.Ed. on November 2 1 , 2000 (Exhibit 1 6 F ) . Although M s . Lee is a counselor with some training and experience in mental health issues, she is not a psychiatrist and therefore

9 not qualified to diagnose bipolar illness. Moreover, her diagnosis is refuted by D r . Glick, a licensed psychiatrist, who followed the claimant closely throughout her treatment at Strafford. I also accord no weight to the November 1 5 , 2001 note from Patricia Yauch, a nurse practitioner who states she performed a gynecological examination of the claimant in February of 2001 an is “aware of her psychiatric history” (Exhibit 1 7 F ) . This document provides no assistance to this adjudicator in determining whether the claimant is disabled, nor does it constitute acceptable treating source opinion evidence under the applicable regulations.

Transcript at 2 0 . Additionally, for reasons set forth in his

written decision, the ALJ concluded that claimant’s assertions of

disability were not entirely credible. Transcript at 20-21.

Next, the ALJ assessed claimant’s residual functional

capacity (“RFC”) from January 1 6 , 2001, forward, concluding that

she retains the ability to sit for prolonged periods of time;

stand and walk for up to six hours at a time; and lift and carry

up to fifty pounds frequently and as much as 100 pounds

occasionally. The ALJ noted, however, that due to her

psychological impairments, claimant must avoid stressful work

environments and is limited to entry-level jobs that require no

more than simple, routine, repetitive tasks.

10 In light of those conclusions, the ALJ determined that,

claimant could not return to her past relevant work.

Nevertheless, based at least in part upon the testimony of a

vocational expert, he found that claimant retained the capacity

to perform work that is available in substantial numbers in the

national economy. Accordingly, the ALJ concluded that claimant

was not disabled, as that term is used in the Act, at any time

through the date of his decision.

II. Claimant’s Assertions of Error.

In her motion seeking an order reversing the decision of the

Commissioner, claimant says the ALJ erred by “failing to appraise

the [claimant] of her right to representation in light of [her]

significant mental illness.” Claimant’s memorandum at 4 .

Additionally, claimant asserts that the ALJ erred by presenting

the vocational expert with a hypothetical question that failed to

accurately reflect all of her non-exertional limitations,

specifically those imposed by her (alleged) bipolar affective

disorder.

11 Because the court agrees that the ALJ did not adequately

address the record evidence relating to claimant’s bipolar

affective disorder, it need not address claimant’s assertion that

the ALJ erred by failing to ensure that she was represented by

counsel at the hearing.

III. Claimant’s Bi-Polar Disorder.

Claimant has a history of alcohol abuse, punctuated by

several admissions to in-patient alcohol detoxification programs,

various out-patient programs (including Alcoholics Anonymous),

and at least three hospital admissions for treatment related to

her alcoholism and suicidal ideation - none of which led to

claimant’s becoming (and remaining) sober. Most recently, in

December of 2000, claimant was admitted to Portsmouth Regional

Hospital and Pavilion (“PRH”), for substance abuse. She was

discharged approximately four weeks later, on January 1 6 , 2001.

She was followed by staff and physicians at PRH through July of

2001 and it appears that she has remained sober (at least through

the date of the ALJ’s hearing - November 2 , 2001).

12 There is little doubt that claimant is physically capable of

performing work that exists in substantial numbers in the

national economy, as evidenced by her activities of daily living,

the fact that she performs volunteer work in her community each

week, and that she is receiving vocational training on the use of

computers for two hours each week. The question presented is

whether the ALJ’s conclusion that her emotional impairments do

not preclude her from actively participating in the workforce is

supported by substantial evidence. Claimant asserts that it is

not.

The evidence in the record with regard to claimant’s bipolar

affective disorder i s , to be sure, conflicting. And, in reaching

the conclusion that claimant does not suffer from that disorder,

the ALJ explained why he discounted the opinions of various

doctors and counselors who shared the view that claimant did, in

fact, suffer from bipolar affective disorder. See generally

transcript at 20-21.

Importantly, however, the ALJ’s decision does not address

the January 1 6 , 2001, “Discharge Summary,” completed by Malcolm

13 Beaudett, M.D. Transcript at 349-51. In i t , D r . Beaudett lists

claimant’s “discharge diagnosis” a s : “Axis I : Bipolar affective

disorder, depressed type, post-traumatic stress disorder, alcohol

dependance.” Id. at 350. Nor does the ALJ’s opinion discuss D r .

James Kates’ similar opinion: “Axis I : Bipolar disorder,

unspecified; rule out bipolar disorder, depressed typed.” Id. at

354.

Additionally, the ALJ’s decision does not address the

opinion of claimant’s licensed mental health counselor, Paul

Spack, M.Ed., who, at the time the ALJ issued his opinion, had

treated claimant for more than 14 months. In February of 2002,

approximately one month before the ALJ issued his opinion, M r .

Spack opined that claimant’s “primary diagnosis is 296.33, Bi-

Polar illness,” adding that “[i]n my clinical opinion,

[claimant’s] alcoholism is a direct result of her self-medicating

to cope with her Bi-Polar illness. Clinically it is secondary to

her mental illness.” Id. at 361.

In addition to being consistent with the opinions cited

above (as well as those of various other treatment providers

14 referenced in the ALJ’s opinion), M r . Spack’s opinion that

claimant’s alcoholism is secondary to her bipolar affective

disorder is consistent with claimant’s prolonged struggle with

alcohol addiction, homelessness, and depressive disorder.

Moreover, while M r . Spack’s opinion is not entitled to

controlling weight under the regulations, he has had the benefit

of working with and observing claimant for over a year, thereby

giving him a valuable perspective on her illnesses and her

ability to function in the working world. See generally

and 404.1527.

Finally, it probably bears noting that the “Psychiatric

Review Technique” form completed by Carol McKenna, PhD., is dated

October 6, 2000. And, while D r . McKenna concluded that claimant

suffered from affective disorder(s) (listing number 12.04),

anxiety-related disorder(s) (listing number 12.06), personality

disorder(s) (listing number 12.08), all of which were secondary

to her substance addition disorder(s) (listing number 12.09), D r .

McKenna’s conclusions were based upon her evaluation of claimant

from September 1 , 1997, through October 6, 2000 - that i s , during

the period that the ALJ found claimant was totally disabled by

15 reason of her alcoholism and related emotional problems. There

i s , however, no “Psychiatric Review Technique” form in the record

that relates to the period currently at issue - following

claimant’s January 1 6 , 2001, discharge from PRH.

IV. Remand is Appropriate.

In light of the substantial conflicting evidence in the

record concerning claimant’s bipolar affective disorder (some of

which is not addressed in the ALJ’s decision), and because

claimant was not represented at the hearing (though she is

currently represented by counsel), the most prudent course is to

remand this matter to the ALJ, so that he might more fully

consider the medical evidence of record, and, if he deems

appropriate, obtain additional psychological testing of claimant

to determine, more definitively, whether she currently suffers

from bipolar affective disorder. See generally

.1519a(b). As the Court of Appeals has observed:

In most instances, where appellant [herself] fails to establish a sufficient claim of disability, the [Commissioner] need proceed no further. Due to the non-adversarial nature of disability determination proceedings, however, the [Commissioner] has recognized that she has certain responsibilities with regard to the development of the evidence and we believe this

16 responsibility increases in cases where the appellant is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evaluation of the claim, and where it is within the power of the administrative law judge, without undue effort, to see that the gaps are somewhat filled as by ordering easily obtained further or more complete reports or requesting further assistance from [those familiar with the appellants’ condition].

Currier v . Secretary of Health, Education & Welfare,

(1st Cir. 1980) (citations omitted). See also Heggarty

v . Sullivan,

9 0 , 997-98 (1st Cir. 1991).

Conclusion

The circumstances of this case warrant remand to the ALJ for

further consideration of the medical (and non-medical) evidence

of claimant’s bipolar affective disorder. First, claimant was

unrepresented at the hearing. Second, the record evidence of

claimant’s bipolar affective disorder i s , at the least, ambiguous

- in 2001, two physicians diagnosed claimant as bipolar and, more

recently, her state licensed counselor expressed the same

opinion. Consequently, more current psychiatric or psychological

testing and/or the opinion(s) of acceptable medical sources would

likely be of substantial assistance to the ALJ. Third, such

17 evidence would not be cumulative or irrelevant and is essential

to a fair hearing. See generally Evangelista v . Secretary of

Health & Human Services,

(1st Cir. 1987). As

this court (Barbadoro, C.J.) has observed, “[w]hen 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.” Barrett v . Barnhart,

5 ,

(D.N.H. March 2 8 , 2003) (remanding the matter pursuant to

sentence four of

(g)).

Accordingly, pursuant to sentence four of

(g), this matter is remanded to the ALJ so that he might more

fully consider the medical evidence of record, and, if he deems

appropriate, obtain additional psychological and/or psychiatric

testing of claimant.

Claimant’s motion to reverse the decision of the

Commissioner (document n o . 6 ) is granted to the extent it seeks

remand of this matter to the ALJ. In all other respects, it is

denied. The Commissioner’s motion to for an order affirming her

18 decision (document n o . 7 ) is denied. 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

January 7 , 2004

cc: David L . Broderick, Esq. Jane M . Ferrini, Esq.

19