Rivard v. SSA CV-06-54-PB 10/17/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey M . Rivard

v. Case N o . 06-cv-054-PB Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Jeffrey Rivard challenges the Commissioner of Social

Security’s determination that he is not entitled to either

disability insurance benefits (“DIB”) or supplemental security

income (“SSI”) benefits. He argues, among other things, that the

Administrative Law Judge (“ALJ” erred by improperly ignoring

significant evidence supporting his claim that he cannot return

to his past relevant work as a janitor.1 For the reasons that

1 Rivard makes several additional arguments, but I need not address them now because this ground alone necessitates a remand. I will, however, briefly mention them in order to direct the ALJ’s attention to these issues during further proceedings. First, Rivard argues that the ALJ erred in finding that his previous job as a janitor constituted “past relevant work” within the meaning of the Regulations. Specifically, he contends that the record lacked sufficient evidence to support such a finding and that the ALJ failed to resolve an inconsistency between the Vocational Expert’s (“VE”) characterization of the skill level of follow, I agree and remand this case for further consideration

consistent with this order.

I. BACKGROUND2

A. Procedural History

Jeffrey Rivard filed for Disability Insurance benefits and

Supplemental Security Income benefits pursuant to Titles II and

XVI of the Social Security Act (“SSA”) on February 1 1 , 2003 (Tr.

68-70, 259-261), with a protective filing date of January 2 4 ,

2003 (Tr. 6 7 ) . His date last insured was June 3 0 , 2004. (Tr.

7 1 ) . He claimed that he had been unable to work since October 3 1 ,

2002 due to problems stemming from bipolar disorder and

schizophrenia. (Tr. 6 8 , 7 8 ) . His application was denied both

Rivard’s janitor job and the skill levels of the janitor positions listed in the Dictionary of Occupational Titles (“DOT”). Alternatively, Rivard argues that the ALJ should have disregarded the janitor job as an “unsuccessful work attempt” that would not constitute past relevant work within the meaning of the Regulations. Rivard also contends that the ALJ’s step four analysis was insufficient because he did not make the required specific findings of fact regarding Rivard’s RFC, the physical and mental demands of his past work, and the fit between the two. 2 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. 10) submitted by the parties pursuant to Local Rule 9.

-2- initially and on reconsideration. (Tr. 35-41, 46-49).

Rivard then requested a hearing before an Administrative Law

Judge (ALJ). (Tr. 5 3 ) . The hearing convened on March 3 , 2005

(Tr. 2 7 1 ) . The ALJ issued his decision on April 1 3 , 2005, ruling

that Plaintiff was not disabled within the meaning of the Act.

(Tr. 21-32). Rivard subsequently requested that the Appeals

Council review the ALJ’s decision. (Tr. 18-20). The Appeals

Council declined to do so (Tr. 6 - 9 ) , thus making the ALJ’s

decision the final agency determination. The case therefore

became ripe for judicial review.

B. Rivard’s Educational, Vocational, and Medical History

Rivard began having behavioral problems during his junior

high school years. (Tr. 2 2 2 ) . He was involved with a gang and

was frequently violent and aggressive. (Tr. 222-226).

Rivard was psychiatrically hospitalized for the first time

in November 1997, at age 1 7 , because of concerns regarding his

violent behavior. (Tr. 136-153, 239-243). After being

discharged in March 1998, there were lingering concerns about his

potential for violent behavior, but it was noted that he was

calm, sociable, and in control of his behavior while in the

hospital. (Tr. 2 4 1 , 2 4 3 ) . It was also noted that his observed

-3- behavior clashed with his self-reports of violent behavior,

leading to the conclusion that Plaintiff may have been

confabulating to some extent. (Tr. 236, 2 4 1 , 2 4 3 ) .

Rivard was hospitalized again from May 2 7 , 1998 to June 1 7 ,

1998 and from March 4 , 1999 to March 1 5 , 1999. (Tr. 2 2 7 ) . He was

very manageable and in control of his behavior during both

hospitalizations. (Tr. 2 3 0 , 2 3 6 ) . Medical notes from January

2003 reflect that he complained of being irritated, depressed,

and anxious. (Tr. 189, 1 9 4 ) . He stated that his then girlfriend

had broken up with him because he had been verbally abusive and

had punched and dented the refrigerator and a table. (Tr. 1 8 9 ) .

Each had a restraining order out against the other.

Rivard

was not taking any medications. (Tr. 1 9 2 ) . Rivard’s affect was

flat, but he was cooperative, and his thought processes were

clear and coherent. (Tr. 1 9 4 ) . His judgment was impaired, and

his insight was minimal. (Tr. 1 9 4 ) . His memory was intact.

In February 2003, Rivard reported that he lived in a shelter

for homeless men. (Tr. 9 5 , 1 0 4 ) . He prepared all his own meals

and went grocery shopping once per week. (Tr. 95-96). He

watched TV and read about one book per month. (Tr. 96-97). He

stated he could handle his own money. (Tr. 9 6 ) . He reported

-4- that he was capable of working, but that he felt that Social

Security benefits would help him to support himself. (Tr. 9 9 ) .

Rivard underwent a psychiatric evaluation on April 1 5 , 2003.

(Tr. 186-188). He still had some mood instability, but it was

noted that medications had helped.

He was personable, and

his affect was good with no lability.

He exhibited no

obvious evidence of psychosis, and his insight and judgement were

good.

Rivard was subsequently hospitalized for a one night

in May 2003. (Tr. 162-163). He complained of being overwhelmed

and depressed and claimed to be suicidal.

He was using

drugs and alcohol at the time, and it was noted that he had been

diagnosed with bipolar disorder.3

While in the hospital,

Rivard maintained good behavioral control, was engaged and

cooperative, ate and slept well, and participated in most patient

activities. (Tr. 163, 1 6 7 ) . He was discharged with a Global

Assessment of Functioning (GAF) Score of 6 0 . (Tr. 163). 4 In

3 Bipolar Disorder - a mood disorder characterized by the occurrence of one or more manic episodes; in almost all cases in one or more major depressive episodes will eventually occur. Dorland's Illustrated Medical Dictionary, 492 (28th ed. 1994). 4 See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) (GAF score of 51-60 reflects moderate symptoms).

-5- June 2003, Rivard began living in a residential treatment

program, which provided needed structure in his life. (Tr.

110-111). He was then working up to 25 hours per week at Burger

King.

He reported that he had problems concentrating, that

he had trouble with insubordination and working with people, and

that his mood swings caused him to behave in ways deemed

unacceptable to the public. (Tr. 121-125). A third party

reported in June 2003, that Rivard spent his days working at

Burger King, hanging out with his friends, and watching TV. (Tr.

112). He had no problems with his personal care and needed no

help taking his medications. (Tr. 1 1 3 ) . He prepared his own

meals, did laundry and chores, and was able to pay bills, count

change, use money orders, shop, and travel. (Tr. 1 1 5 ) . He

visited with family and friends. (Tr. 1 1 6 ) . His behavior was

noted to be that “of a 20 year old,” meaning that he sometimes

aggravated his house mates. (Tr. 1 1 6 ) . He could pay attention

for one hour or longer. (Tr. 1 1 7 ) . He finished what he started

and was able to follow written and spoken instructions. (Tr.

118). He did have problems handling stress, but had not been

observed behaving in any unusual manner. (Tr. 1 1 8 ) . D r . Jeremy

Spiegel noted in June 2003, that Rivard had been doing pretty

-6- well. (Tr. 1 8 5 ) . He was pleasant and calm.

His thoughts

were linear without psychosis.

He had no suicidal or

homicidal ideation.

Rivard was subsequently hospitalized in February 2004, for

four days after having stopped his medications. (Tr. 2 5 4 ) . He

thereafter saw D r . Ruth Frydman in July 2004. (Tr. 254- 2 5 6 ) .

He told D r . Frydman that he had been sober for four to six

months, that his mood was fine, and that his concentration had

been good.

He denied hallucinations, but did report to

feeling sometimes as though he was being poked or brushed.

He lived with his parents after leaving the hospital and later

moved to a residence on Nye Street.

He reported that he had

run into legal problems because of stealing and that he had to

serve jail time. (Tr. 2 5 4 ) . He also reported that he had

violated the restraining order that his ex-girlfriend had taken

out against him by visiting their child. (Tr. 2 5 5 ) . This had

also resulted in a stint in jail.

He had been on probation

for one year. (Tr. 2 5 5 ) . D r . Frydman noted that Rivard’s

behavior was appropriate except for his reluctance to take

certain medications. (Tr. 254-256). D r . Frydman noted that

Rivard continued to have problems with mood swings and concurrent

-7- psychotic symptoms despite sobriety.

She noted, however,

that his thoughts were clear and logical and that he had moderate

insight and judgment.

In August 2004, Rivard told D r .

Frydman that he had been kicked out of the Nye Street residence

and that he had moved back in with his parents. (Tr. 2 5 2 ) . His

mood had been fairly stable.

He reported that he had stolen

some items recently, but that he wanted to stop that behavior, as

he was attempting to obtain a degree.

He was cooperative

and appropriate, and his thoughts were clear and logical.

He visited D r . Brendan Kirby in September 2004. (Tr. 250-251).

Dr. Kirby noted that Rivard was unemployed, but not disabled.

(Tr. 2 5 0 ) . He told D r . Kirby that he had become remorseful about

his past aggressive behavior and stated that he was no longer

abusing substances. (Tr. 250-251). Rivard behaved appropriately

and cooperatively.

There was no evidence of hypomania,

mania, or depression.

His concentration and attention span

were normal, his judgment was intact, and his insight into his

illness was fair.

There was no evidence of psychosis and

Rivard was felt to be safe to himself and others. (Tr. 250-251).

Rivard saw D r . Kirby again in October 2004. (Tr. 2 4 8 ) . He

reported that he was “all right.” (Tr. 2 4 8 ) . He behaved

-8- appropriately and cooperatively and concentrated and attended

well.

His substance abuse problem was in early partial

remission.

C. Functional Capacity Evaluations

On September 4 , 2003, a Disability Determination Services

(DDS) physician reviewed Rivard’s records and concluded that he

suffered from bipolar disorder and anti-social personality

disorder. (Tr. 2 0 1 , 2 0 5 ) . He indicated that, because of these

disorders, Rivard experienced a moderate degree of limitation in

terms of maintaining social functioning and maintaining

concentration, persistence, and pace. (Tr. 198-211). Based on

these conclusions, he determined that an RFC Assessment was

necessary. (Tr. 1 9 8 ) . The physician conducted an RFC Assessment

on the same day and concluded that when Rivard was not abusing

drugs or alcohol he was capable of performing simple 1-3 step

tasks, that he could concentrate well enough to complete such

simple tasks, that he had social skills, but worked best alone,

and that he could adapt to simple changes. (Tr. 214-215). The

physician also indicated that Rivard suffered from moderate

limitations with respect to the following abilities: the ability

to understand and remember detailed instructions, the ability to

-9- carry out detailed instructions, the ability to maintain

attention and concentration for extended periods, the ability to

perform activities within a schedule, to maintain regular

attendance and be punctual within customary tolerances, the

ability to work in coordination with or proximity to others

without being distracted by them, the ability to get along with

coworkers or peers without distracting them or exhibiting

behavioral extremes, the ability to maintain socially appropriate

behavior and to adhere to basic standards of neatness and

cleanliness, the ability to respond appropriately to changes in

the work setting, and the ability to set realistic goals or make

plans independently of others. (Tr. 212-213). This assessment

was affirmed by a second DDS physician on September 2 6 , 2003.

(Tr. 2 1 6 ) .

D. Rivard’s Hearing Testimony

Rivard, who was 22 years old at the time of the ALJ’s

decision (Tr. 2 9 , 6 8 ) , testified that in approximately the middle

of eighth grade he transferred to an alternative school program

for students with behavioral problems. (Tr. 2 7 5 ) . He finished

the 10th grade in the alternative program and subsequently

obtained his GED. (Tr. 280-281). He began having problems with

-10- the legal system as a juvenile. (Tr. 2 8 0 ) . He admitted to

having had problems with anger and rage and getting along with

people since the seventh or eighth grade. (Tr. 2 8 4 ) . He also

admitted to a history of abusing drugs, but stated that he had

been clean since January 2004. (Tr. 2 9 1 ) . He denied having any

problems with alcohol. (Tr. 2 9 2 ) . He stated he had been

hospitalized for psychiatric problems several times, the last

time being in February 2004. (Tr. 306-307). He had a diagnosis

of bipolar disorder. (Tr. 2 9 2 ) . Medications helped control his

symptoms. (Tr. 295-296, 3 0 1 ) . He testified that he could

probably obtain a job, but that he did not think he could keep

one because of his problems with mood swings, paranoia, and

sleep. (Tr. 3 0 5 ) . He maintained that he sometimes got “cocky”

with authority figures, but that his primary problem was working

with co-workers. (Tr. 2 8 9 ) . He had previously worked in

positions in the food industry, a blanket factory, a laundry

facility, and as a janitor. (Tr. 283- 289, 3 0 9 ) . The position

he held the longest was for nine months at Burger King. (Tr.

307). He got fired from all but one position—the one at the

laundry—which he quit because he didn’t care for i t . (Tr.

283-288, 3 1 2 ) . He was fired for various reasons ranging from

-11- showing up late, mocking his manager, and allegedly being in

possession of drugs. (Tr. 283-288, 3 1 2 ) . He testified that he

regularly missed at least one day of work per month and was late

often. (Tr. 313-314). After being warned, however, he did not

miss work or show up late at the blanket factory because the job

paid $14 per hour and he did not want to lose i t . (Tr.

314). At the time of the hearing, Rivard lived with a

girlfriend. (Tr. 3 0 2 ) . He performed chores around the house and

occasionally helped out at his mother’s barber shop. (Tr. 3 0 2 ,

304). He had a two and one-half year old child that he did not

see. (Tr. 3 0 3 ) .

E. Vocational Expert Testimony

The VE testified that Rivard’s past relevant work consisted

of fast food and janitorial work, which was light and unskilled

as performed. (Tr. 7 9 , 87-91, 3 0 9 ) . Upon questioning by the

ALJ, the VE stated that janitorial work would be a good placement

for an individual who had trouble dealing with coworkers and/or

supervisors. (Tr. 3 1 0 ) . The VE further testified that if

Rivard’s rate of absenteeism is a day a month or greater, any

potential occupational base would likely be abolished. (Tr. 311-

312). In response to a hypothetical question posed by Rivard’s

-12- attorney, the VE testified that the cumulative effect of several

less than satisfactory abilities indicated in Rivard’s medical

records would abolish any occupational base. (Tr. 3 1 6 ) .

F. The ALJ’s Decision

The ALJ followed the five-step sequential evaluation

process, pursuant to

and 416.920, to

determine whether Rivard was disabled.5 (Tr. 21-32). At the

first step, the ALJ found that Rivard had not engaged in

substantial gainful activity since his alleged onset date. (Tr.

2 7 , 28 at Finding 2 ) . At steps two and three, he found that

Rivard’s bipolar disorder and history of drug and alcohol abuse

were severe impairments, but that they did not meet or equal a

listed impairment under Appendix 1 , Subpart P of Regulations N o .

5 The claimant has the burden at the first four steps to show that: (1) the claimant is not engaged in substantial gainful activity; and (2) the claimant has a severe impairment; and (3) the impairment meets or equals a specific impairment listed in the SSA regulations; or (4) the impairment prevents or prevented the claimant from performing past relevant work.

at § 404.1520(a)(4)(i)-(iv). At step five, the burden shifts to the Commissioner to show "that there are jobs in the national economy that [the] claimant can perform." Heggarty v . Sullivan,

9 0 , 995 (1st Cir. 1991). The ALJ's conclusions at steps four and five are informed by his assessment of the claimant's residual functional capacity (“RFC”), which is a description of the kind of work that the claimant is able to perform despite her impairments.

, 404.1545.

-13- 4. (Tr. 2 7 , 28 at Findings 3 and 4 ) . The ALJ further determined

that Rivard retained the Residual Functional Capacity (RFC) to

perform simple, unskilled, repetitive work at all levels of

exertion that did not involve extensive public contact. (Tr. 28

at Finding 6 ) . At step four, the ALJ found, based on the VE

testimony, that Rivard could perform his past relevant work as a

janitor (Tr. 28 at Findings 7 - 8 ) , and that he was not under a

disability at any time relevant to his decision. (Tr. 28 at

Finding 9 ) .

II. STANDARD OF REVIEW

Pursuant to

(g), 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 ALJ's decision. The ALJ's factual findings are

conclusive if they are supported by substantial evidence.

(g); Ortiz v . Sec'y of Health & Human Servs.,

(1st Cir. 1991). Substantial evidence is that

which “‘a reasonable mind, reviewing the evidence in the record

as a whole, could accept . . . as adequate to support [the]

conclusion.’”

(quoting Rodriguez v . Sec'y of Health and

-14- Human Servs.,

1 8 , 222 (1st Cir. 1981)). Thus, the

ALJ’s decision is supported by substantial evidence if it is

reasonable. See

The ALJ is responsible for settling credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence.

If the ALJ’s findings as to these

matters are reasonable, I must uphold them “even if the record

arguably could justify a different conclusion.” Tsarelka v .

Sec'y of Health & Human Servs.,

(1st Cir.

1988). On the other hand, the ALJ’s findings are not conclusive

if they were “derived by ignoring evidence, misapplying the law,

or judging matters entrusted to experts.” Nguyen v . Chater,

1 , 35 (1st Cir. 1999). I apply these standards to the

arguments Rivard raises in his appeal.

III. ANALYSIS

In this case, the ALJ determined that Rivard was not

entitled to benefits because his impairments did not prevent him

from returning to his past work as a janitor. He first found

that Rivard’s RFC allowed him to perform simple, unskilled,

repetitive work that did not involve extensive public contact.

-15- Then, based on the testimony of the VE that a janitorial job

“seems to be a pretty good place to put folks who have trouble

dealing with coworkers”6 (Tr. 3 1 0 ) , the ALJ reasoned that

Rivard’s past relevant work as a janitor did not require the

performance of work-related activities precluded by his RFC.

Therefore, the ALJ determined, Rivard’s impairments did not

prevent him from performing his past relevant work, so he was not

disabled.

Rivard argues that the ALJ erred by ignoring important

portions of the record. First, Rivard claims that the ALJ

ignored his testimony that he “missed more than one day a month

regularly” in previous employment situations. (Tr. 3 1 4 ) .

Earlier in the proceeding, the VE testified that “if [Rivard’s]

rate of absenteeism is a day a month or greater, [which would

constitute an] essentially excessive rate of absenteesim, then I

think that would abolish any potential occupational base in the

6 The testimony of the VE came in response to the following hypothetical question posed by the ALJ: “Mr. Newman, the claimant has a GED education at age 2 2 . He has described to us significant problems dealing with people in general, particularly coworkers, seems to have lead to his downfall on several of these job attempts. If you were trying to place such a person in some sort of an occupation, would you put him in any of the jobs he’s had in the past?”

-16- scheme of occupations.” (Tr. 3 1 2 ) . In light of this expert

testimony, the evidence in the record that Rivard routinely

missed more than one day of work per month throughout his

employment history clearly constitutes probative evidence in

support of Rivard’s claim. Thus, it should have been considered

by the ALJ. See Nguyen, 172 F.3d at 3 5 .

Additionally, Rivard contends that the ALJ ignored important

portions of the Psychiatric Review Technique (“PRT”) form (Tr.

198-211) and the Residual Functional Capacity Assessment (“RFCA”)

form (TR. 212-215). These forms indicate that Rivard exhibited

moderate limitations with respect to several areas of

functionality.7 This evidence is particularly probative in light

of the VE’s response to following hypothetical question posed by

Rivard’s attorney:

I’d like you to assume the following, and I’m going to base it on Exhibits F6 and F 7 8 , that[] this claimant

7 These limitations are listed specifically in the excerpt of hearing testimony that follows. 8 Exhibits F6 and F 7 , respectively, are the PRT and RFCA forms referenced above. Both forms were completed by DDS physicians. Thus, the inputs used by Rivard’s attorney in the hypothetical are supported by medical evidence in the record. See Arocho v . Sec’y of Health & Human Servs.,

7 4 , 375 (1st Cir. 1982). (reasoning that for a VE’s “answer to a hypothetical question to be relevant, the inputs into that hypothetical must

-17- would have the following limitations. Potentially mental health limitations by the DDS physician from this case said he would have moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; he would have moderate difficulties in his ability to understand and remember detailed instructions, and to carry out those detailed instructions; moderate problems in his ability to maintain attention and concentration for extended periods, to perform activities within a schedule, to maintain regular attendance, to be punctual within customary tolerances; and moderate difficulties in his ability to work in coordination with or in proximity to others without being distracted by them; and finally, moderate difficulty in maintaining–in completing a normal workday and workweek without interruptions from his psychologically based symptoms, and his ability to accept instructions and to respond appropriately to criticism in the work setting. If the claimant had these limitations, do you think he could do any of this part relevant work?

When the VE expressed confusion as to the proper definition of

“moderate,”9 Rivard’s attorney described the term essentially as

a “less than satisfactory” level of functionality with respect to

a given ability for “one-third of the day.” (Tr. 3 1 6 ) . After

accepting this definition for the purposes of the question, the

VE testified:

correspond to conclusions that are supported by the outputs from the medical authorities”). 9 The term “moderate” is not defined in the medical forms at issue or in the Regulations.

-18- I think that this is one of those cases where the cumulative effect would really come into play. The cumulative effect on all of these less than satisfactory abilities on an occasional basis, I think probably would abolish any occupational base, if that’s your definition of moderate. (Tr. 3 1 6 ) .

Given the VE’s testimony that a given combination of moderate

limitations could “abolish any occupational base,” the portion of

Rivard’s medical records indicating that he exhibited that very

combination of limitations constitutes probative evidence that

the ALJ should have considered. See Nguyen, 172 F.3d at 3 5 .

Because the ALJ's decision completely failed to mention

either Rivard’s testimony with respect to his chronic absenteeism

or the medical records indicating that Rivard suffered from

moderate functional limitations, it is impossible to determine

whether this evidence was considered and implicitly discredited

or instead was simply ignored. See Cotter v . Harris,

(3d Cir. 1981). At the very least, these portions of

the testimony and the medical records constitute evidence that an

ALJ should consider and evaluate in the course of reaching a

decision. See

(a) (“We consider all

evidence in your case record when we make a determination or

decision whether you are disabled.”), 404.1512(b) (defining

“evidence” to include anything that a claimant or “anyone else

-19- submits to [the SSA] that relates to” a claim). Although the ALJ

could have discredited Rivard’s testimony or rejected the

definition of “moderate” posed by Rivard’s counsel, he was

nonetheless obligated to explain his reasons for doing s o . See

Cotter,

. Accordingly, the ALJ’s decision was not

based on substantial evidence.

IV. CONCLUSION

For these reasons I grant Rivard’s motion for an order

reversing the decision of the Commissioner (doc. n o . 8 ) and deny

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

the Commissioner (doc. n o . 9 ) . The ALJ’s decision is vacated and

remanded for further development of the record in line with this

opinion.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

October 1 7 , 2006

cc: Francis Jackson, Esq. Karen Nesbitt, Esq. David Broderick, Esq.

-20-