Larocque v. Comm. SSA 06CV022-JD 12/20/06 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Amy-Lin Larocque

v. Civil No. 06-022-JD Opinion No.

Jo Anne B. Barnhart. Commissioner. Social Security Administration

O R D E R

Amy-Lin Larocque brings this action pursuant to

(g), seeking judicial review of the decision by the

Commissioner of the Social Security Administration denying her

application for Title XVI, Supplemental Security Income ("SSI"),

benefits. Larocque contends that the Administrative Law Judge

("ALJ") inappropriately used the Medical-Vocational Guidelines

("the Grid") to determine that she is not disabled and improperly

evaluated the impact of her mental impairments on her ability to

work. The Commissioner moves to affirm the decision.

Background

Amy-Lin Larocque applied for SSI benefits in January of 2004

when she was thirty years old. She alleged a disability since

March of 2002 due to depression and emotional problems. Larocque

did not complete her secondary school education, leaving school

after the eighth grade. She worked at a pet store as a cleaner and retail clerk. She lives with a roommate and her two sons.1

Her medical records document a history of mental illness

since at least the age of fifteen. Larocque received counseling

at Manchester Mental Health following a referral in March of 2004

from Elliot Hospital, where she had been seen when police brought

her in due to wounds on her wrists. Larocque reported that she

cut herself to relieve stress. She reported drinking a six-pack

of beer each night and smoking marijuana. She also reported that

she had been hearing voices since she was six or seven years old,

when she was abused by her uncle and her stepfather, and that the

voices "egged her on." She was provisionally diagnosed at

Manchester Mental Health as having post-traumatic stress disorder

("PTSD") and borderline personality disorder.

In April of 2004, Larocque was evaluated by Dr. Romulo

Valdez, for the state disability services, who completed a

"Comprehensive Psychological Profile."2 Larocque said she was

1The parties' joint factual statement refers to Larocque's husband but also states that Larocque lives with a roommate and two sons. At the hearing, Larocque testified that she has six children, that three of the children live with their father, that a fourth child passes back and forth between Larocque and that child's father, and that the remaining two sons live with her.

2The parties attribute the evaluation to Dr. Valdez, and he signed the attestation that the information in the report was "based on a personal examination of this claimant by this examiner." Admin. Rec. at 193. On the first page of the report, however, the "Examiner" is identified as "Cheryl Searles" without

2 taking prescribed medications for schizophrenia, bipolar

disorder, and PTSD. She had cuts on her arms and said that she

had done self-mutilation since she was fourteen. She reported

that she was sexually and physically abused by her uncle and

stepfather, that she left home at fifteen and thereafter lived

with friends and on the street, and that she had had severe

alcohol dependence until four days before the evaluation.

Section VII of Dr. Valdez's report titled "Current Level of

Functioning" is missing, and Section VIII, which appears to

provide the diagnoses, is missing in part. The administrative

record jumps from page 191 to page 193, with page 6 of Dr.

Valdez's report omitted. The parties' joint factual statement

does not explain the missing page but also does not cite to that

page.

Based on his testing and evaluation. Dr. Valdez diagnosed

Larocque with PTSD, mood disorder not otherwise specified that

was secondary to PTSD with psychotic features, polysubstance

dependence in early remission, and personality disorder with

schizotypal, antisocial, and borderline features. Dr. Valdez

further stated that Larocque was not capable of managing her own

any indication as to her role or qualifications.

3 funds and expressed concern about her substance dependence and

her impulsive judgment.

On May 20, 2004, a state DDS non-examining consultative

psychologist. Dr. William Jamieson, reviewed Larocque's file and

completed a Psychiatric Review Technique form based on the file.

Dr. Jamieson reported that Larocque had depressive disorder not

otherwise specified and personality disorder not otherwise

specified. He thought those disorders would cause mild

limitations in Larocque's activities of daily living and social

functioning, with moderate difficulties in maintaining

concentration, persistence, and pace. He found no extended

periods of decompensation. On the Residual Functional Capacity

Assessment, Dr. Jamieson found moderate limitations in Larocque's

ability to understand, remember, and carry out detailed

instructions and in her ability to respond appropriately to

changes in the work setting. He noted that Larocque's records at

that time. May of 2004, related primarily to physical rather than

psychological issues. Dr. Jamieson relied on Dr. Valdez's

assessment except that he found the PTSD diagnosis unsupported.

Dr. Jamieson also found, based on the medical record, that

Larocque was not fully credible as to the extent of her

limitations. He concluded that, despite the limitations he

found, Larocque could relate and respond appropriately and that

4 she could complete a normal work day and work week at a

reasonable pace.

Larocque received counseling at Manchester Mental Health

from March of 2004 through March of 2005. During that time, she

continued to report depression and that she was hearing voices.

She often missed appointments and told her counselor that she did

not come because she got nervous about leaving the house.

Although she reported some improvement in January of 2005, she

was treated in the emergency department at Elliot Hospital on

February 25 because she cut herself after a fight with her

husband. She said she cut her leg to relieve stress. Despite

writing the police had found on the wall of her bedroom,

indicating that she wanted to kill herself, she denied suicidal

ideation.

On March 25, 2005, Larocque was evaluated by Dr. Angel

Martinez in connection with her application for benefits under

the Aid to the Permanently and Totally Disabled ("APTD") program

through the New Hampshire Department of Health and Human

Services.3 Dr. Martinez found that Larocque was "underattentive

to personal hygiene," but that her speech and affect were normal

3The parties included a summary of Dr. Martinez's evaluation in their joint factual statement. It appears, however, that Dr. Martinez's evaluation was submitted only to the Appeals Council, along with notice that Larocque was approved for APTD benefits.

5 and appropriate. Joint Statement at 8. Dr. Martinez noted that

Larocque's expressed thoughts were notable "for command auditory

and visual hallucinations."

Based on his evaluation. Dr.

Martinez found that Larocque had marked limitations in her daily

activities, moderate limitations in her social interactions, and

had a loss in her ability to tolerate work-related stress. He

said that she would react to stress by becoming agitated, by

screaming, and by crying. He diagnosed bipolar disorder and also

questioned schizoaffective disorder, alcohol abuse, and obsessive

compulsive traits.

In April of 2005, Larocque underwent a consultative

psychological evaluation with Drs. Aisha Sabir, Lovie Hope Go,

and Albert Drukteinis, at the request of her attorney. Larocque

described her daily activities. She said she could not return to

work because dealing with the public was difficult for her. In

their report, the doctors stated that Larocque was nervous, had a

flat emotional expression, had coherent and goal-oriented

thought, and was oriented in time, place, and person. The

doctors assessed major depressive disorder, anxiety disorder not

otherwise specified, learning disorder, history of substance

abuse, and a personality disorder not otherwise specified. The

report noted that Larocque demonstrated difficulty with

concentration and attention during their interview. They

6 concluded that Larocque's mental condition had lasted for twelve

months and could be expected to last for at least another twelve

months.

Dr. Go completed a Medical Source Statement of Ability to do

Work Related Activities (Mental) on May 3, 2005. Dr. Go found

slight limitations in Larocque's ability to follow simple

instructions and to interact with co-workers and supervisors

and moderate limitations in Larocque's ability to understand,

remember, and carry out detailed instructions, to make judgments,

and to respond appropriately to pressures in the work

environment. Dr. Go found that Larocque would have marked

difficulty in interacting with the public and responding to

workplace changes.

An administrative hearing was held on May 12, 2005, before

ALJ Klingebiel. Larocque appeared at the hearing and was

represented by counsel. Larocque explained that she left her

jobs at the pet store and at a department store because she did

not like to work with the public and that she left her cleaning

job because she did not like being in a big building by herself.

She also said she was not working because she was trying to "get

[her] head together" so that she could go out in public and work

toward a GED. She said that she heard voices, was afraid to

leave her house, slept very little, had chronic nightmares, and

7 had no energy. She also said that she could concentrate only for

a short time before her mind wandered, that she could not drive

because she was afraid, and that she left the house only when her

roommate made her go out for grocery shopping. She was not then

taking medication or receiving counseling. She said that she

drank alcohol only once or twice a month and that was to drown

out the voices in her head.

The ALJ issued his decision on July 14, 2005. He concluded

that Larocque's diagnosed personality and depressive disorders

were severe but that her descriptions of her impairments and

their impact on her ability to work were not credible. The ALJ

discredited the opinions of Drs. Sabir, Go, and Drukteinis

because Larocque had been referred to those doctors by her

attorney. Based on the opinions of the DDS consultants, Drs.

Valdez and Jamieson, and Social Security Ruling 85-15, after

applying the Grid, the ALJ concluded that Larocque was not

disabled. The Appeals Council denied her request for review.

Discussion

Larocque contends that the Commissioner's decision that she

is not disabled should be reversed because the ALJ did not

properly evaluate the effects of her mental impairments on her

ability to work and the ALJ failed to use a vocational expert to show that jobs were available that Larocque could do. The

Commissioner responds that the ALJ properly weighed the medical

opinions in the record and, following SSR 85-15, properly used

the Grid to determine that Larocque was not disabled.

A. New Evidence

As a preliminary matter, as is noted above, the record of

Dr. Martinez's evaluation of Larocque, which is dated April 20,

2005, was apparently submitted only to the Appeals Council. In

reviewing the Commissioner's decision, the court is limited to

the evidence that was submitted to the ALJ. Mills v. Apfel,

(1st Cir. 2001). When new evidence is presented to the

Appeals Council but review is denied, the court may review that

decision only if the Council gave "an egregiously mistaken ground

for this action."

A slight overstatement in the reason

given for denying review is not a serious mistake that allows

judicial review.

. Alternatively, the court may remand

a case for further consideration if material new evidence is

submitted and the party introducing the evidence shows good cause

for failing to present that evidence to the ALJ. See § 405(g);

Freeman v. Barnhart.

(1st Cir. 2001).

In this case, Larocque did not ask the court to review the

Appeals Council's decision or to remand the case for further

9 administrative proceedings in light Dr. Martinez's evaluation.

Larocque has shown neither an egregious mistake by the Appeals

Council nor good cause for not submitting that evidence.

Therefore, the court will not review the Appeals Council's

decision and will not consider Dr. Martinez's evaluation.

B. Review of the Decision

The court must uphold a final decision of the Commissioner

to deny an application for benefits unless the decision is based

on legal or factual error. Manso-Pizarro v. Sec'v of Health &

Human Servs.,

(1st Cir. 1996) (citing Sullivan v.

Hudson.

(1989)). The Commissioner's factual

findings are conclusive if based on substantial evidence in the

record.

(g). Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." Richardson v. Perales.

(1971) (internal quotation marks omitted). In making the

disability determination, "[i]t is the responsibility of the

[ALJ] to determine issues of credibility and to draw inferences

from the record evidence." Irlanda Ortiz v. Sec'v of Health &

Human Servs..

(1st Cir. 1991). The ALJ's fact

finding is "not conclusive when derived by ignoring evidence,

misapplying the law, or judging matters entrusted to experts."

10 Nquven v. Chater,

(1st Cir. 1999)

The ALJ found that Larocque could

carry out simple tasks for two hour intervals during an eight hour work day, and [was] able to maintain concentration and attention sufficient to perform simple work tasks for an eight hour work day, assuming short work breaks on average every two hours. She [was] able to interact with the public on an occasional basis, provided interaction does not require more than exchange of non­ personal work-related information or hand-off of products or materials, and [was] able to work in the presence of co­ workers and engage in appropriate occasional social interaction.

Admin. Rec. at 22. Despite his optimistic evaluation, the ALJ

found that Larocque could not return to her former work in a pet

store because of her "current mental limitations."

Once a claimant meets her burden of showing that she cannot

return to her former work at the fourth step of the sequential

analysis, the burden shifts, at the fifth step, to the

Commissioner to provide evidence of work the claimant can do to

support a determination that the claimant is not disabled.4

Seavev v. Barnhart.

(1st Cir. 2001). When the

claimant's impairments are only exertional, the Commissioner may

rely on the Grid, at 20 C.F.R., Part 404, subpart P, Appendix P,

tables 1-3, to support that determination.

In contrast,

however, when the claimant's only impairments are mental.

4See

.

11 "the final consideration is whether the person can be expected to perform unskilled work. The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base."

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

(1st Cir. 1986) (quoting SSR 85-15,

at *4).

In this case, the ALJ determined Larocque's residual

functional capacity based on the opinions of Drs. Valdez and

Jamieson, while he discounted the opinions of Drs. Go, Sabir, and

Drukteinis. The ALJ stated that the opinions of Drs. Jamieson

and Valdez were supported by the evidence. He also found that

"because Dr. Valdez had the opportunity to evaluate substantially

all of the medical evidence of record and conduct a clinical

examination, significant weight is accorded to his opinion."

Admin. Rec. at 21.

1. The Administrative Record

At the fifth step, the Commissioner bears the burden of

showing that the claimant is able to perform work other than her

former work. Seavev.

. As part of the analysis at

the fifth step, the ALJ is required to make a residual functional

12 capacity assessment based on the evidence in the record.

(e) & 416.945. On review, the court must

determine whether the residual functional capacity assessment is

supported by substantial evidence in the record. See Berrios

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

(1st Cir. 1991) .

Contrary to the ALJ's statement according Dr. Valdez's

opinion significant weight, important information was added to

Larocque's medical records after Dr. Valdez's evaluation in April

and after Dr. Jamison's review in May of 2004. For example, in

August of 2004, Larocque reported to her counselor that she was

having nightmares and hearing voices. In January of 2005, she

explained to her counselor that she missed appointments because

she was nervous about leaving her apartment. In February of

2005, Larocque was examined in the emergency department at

Elliott Hospital when she cut herself following a fight with her

husband, purportedly in an effort to relieve stress, and the

police found she had written on her bedroom wall that she wanted

to kill herself. Drs. Jamieson and Valdez did not have the

opportunity to review the evaluation done by Drs. Go, Sabir, and

Drukteinis, who diagnosed a major depressive disorder, anxiety

disorder, learning disorder, and personality disorder and found

that Larocque demonstrated difficulty with concentration and

13 attention and found Larocque had marked difficulty in interacting

with the public and responding to changes in the workplace. Drs.

Valdez and Jamieson also did not review Dr. Martinez's

evaluation, which indicates significant limitations.

Because the ALJ placed "significant weight" on Dr. Valdez's

opinion, which also served as the basis for Dr. Jamieson's

opinion, his report is highly material to the court's review.5

The most significant parts of Dr. Valdez's report. Section VII

titled "Current Level of Functioning" and part of Section VIII

are missing from the administrative record. It is not clear

whether the ALJ relied on Dr. Valdez's complete report or whether

the report provided to him was also missing a page.6 In the

absence of the page providing Dr. Valdez's functional assessment

and part of his diagnosis, the record lacks significant evidence

to support the ALJ's residual functional capacity assessment and

his finding that Larocque was not disabled based on that

assessment.

5D r . Jamieson's opinion is merely a review of Larocque's medical record up to that time that is based on Dr. Valdez's opinions.

6Because the ALJ did not cite any of Dr. Valdez's functional assessments, that page may have been missing from the record at the time of the ALJ's review.

14 Reliance on the Grid

In addition, even if the ALJ's residual functional capacity

assessment were properly supported, his reliance on the Grid in

this case was inappropriate. If a claimant's mental impairments

significantly affect her ability to perform a full range of jobs,

the ALJ cannot rely on the Grid to carry the burden of showing

that jobs exist which the claimant can do. Ortiz v. Sec'v of

Health & Human Servs.,

(1st Cir. 1989).

Special caution is required in evaluating the effects of mental

illness when relying on the Grid:

Since mental illness is defined and characterized by maladaptive behavior, it is not unusual that the mentally impaired have difficulty adapting to the demands of work and work-like settings. Determining whether these individuals will be able to adapt to the demands or "stress" of the workplace is often extremely difficult. This section is not intended to set out any presumptive limitations for disorders, but to emphasize the importance of thoroughness in evaluation on an individualized basis. . . . Any impairment-related limitations created by an individual's response to demands of work, however, must be reflected in the RFC assessment.

SSR 85-15,

at *5-*6.

The ALJ found that Larocque would respond appropriately to

supervisors and co-workers and had no difficulty related to

stress in a work setting. He found that Larocque could "perform

any unskilled job that does not require more than occasional

public contact." Admin. Rec. at 23. The ALJ further found.

15 without any citation to authority, that "the mere inability to

perform substantially all unskilled occupations does not equate

to a finding of disability."

He concluded that she was not

disabled, using the Grid as a framework based on SSR 85-15.

Even Dr. Jamieson, however, found that Larocque would only

be able to respond appropriately to simple and routine changes in

her work setting and that she had "some difficulties in dealing

with work related stresses." Admin. Rec. at 185. None of the

evaluations of Larocque in the record indicate that she would not

have stress in dealing with a work setting. In finding

otherwise, the ALJ ignored Larocque's significant limitations,

which undermines his conclusion that she was not disabled.

Nquven.

. In addition, difficulties associated

with responding to changes in the work setting and to work-

related stress generally require an individualized assessment

through testimony from a vocational expert. SSR 85-15,

at *6; Allen v. Barnhart.

(3d Cir. 2005).

Because the ALJ did not explain why an individualized assessment

was not needed here and ignored important limitations in

Larocque's ability to work, substantial evidence is lacking to

support the determination at step five that Larocque is not

disabled. See

16 Conclusion

For the foregoing reasons, the claimant's motion to reverse

and remand (document no. 9) is granted. The Commissioner's

motion to affirm (document no. 11) is denied. Because this is a

sentence four remand, the clerk of court will enter judgment, and

remand the case for further administrative proceedings.

SO ORDERED.

[T)(CiWcp.Ih \\Jos^ph A. DiClerico, JiV. United States District Judge

December 20, 2006

cc: David L. Broderick, Esquire Cheryl S. Driscoll, Esquire

17