Kathleen Price v. SSA CV-07-166-PB 09/02/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kathleen L. Price

v. Case No. 07-cv-166-PB Opinion No.

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Kathleen Price asks me to reverse the Commissioner's

determination that she is not eligible for disability insurance

benefits. The Commissioner seeks an order affirming his

decision. For the reasons set forth below, I grant in part

Price's motion to reverse, deny the Commissioner's motion to

affirm, and remand this case to the Social Security

Administration.

I. BACKGROUND1

Kathleen Price applied for disability insurance benefits on

1 The background information is drawn from the Joint Statement of Material Facts (Doc. No. 9) submitted by the parties. Citations to the Administrative Record Transcript are indicated by "T r ." Because Price's mental disability claims are the only claims relevant to this appeal, this recitation of the facts focuses on evidence relating to Price's mental health. May 24, 2004, claiming an onset date of June 1, 2002. T r . at

45-47. At the time of her application, she was fiftyyears old.

I d . at 45. She had past relevant work experience as a dish

washer, a certified nurse's aid, and a fitting room attendant.

I d . at 16, 50. After her claim was denied. Price requested a

hearing before an Administrative Law Judge ("ALJ"), which took

place on November 2, 2005. I d . at 33, 274-95. At the hearing.

Price waived her right to bring an attorney or other

representative. I d . at 276. The ALJ decided that Price was not

entitled to benefits. I d . at 13-25. On May 11, 2006, the

Appeals Council denied Price's request for review, thereby making

the ALJ's decision the final decision of the Commissioner of the

Social Security Administration ("Commissioner"). I d . at 6-8. On

April 6, 2007, the Appeals Council denied Price's request to

reopen the ALJ's decision to consider new evidence of her mental

disability. I d . at 10-11.

A. Evidence of Price1s Mental Disability in the Administrative Transcript

The record first references Price's mental health on April

2, 2002, when Price stated that her prescription for Zoloft was

no longer "tak[ing] the edge off her 'nerves.'" I d . at 98. The

- 2 - treating nurse practitioner recommended counseling to help with

Price's stress and anxiety, and she prescribed a trial of

Klonopin. I d . at 99. On April 23, 2002, Price indicated that

she was more worried about her emotional problems than her

physical ones. I d . at 101. (She continued to feel the same by

the time of the hearing in front of the ALJ. I d . at 284.)

On May 22, 2002, Price told the treating nurse practitioner

that Zoloft was still not controlling her anxiety. I d . at 109.

The nurse practitioner noted, however, that Price had neither

taken steps to fill the prescription for Klonopin nor sought

counseling. I d . at 109. In another visit in July, Price reported

that she was under a great deal of stress at home and was very

frustrated with her family. I d . at 118. The nurse practitioner

observed that Price was weepy during the visit. I d . at 118.

In August 2002, the treating nurse practitioner noted that

Price continued to have emotional and financial difficulties at

home, including an incident in which Price's son threw her

against a wall, and she continued picking at her skin due to

anxiety. I d . at 120. Price reported that her financial

difficulties prevented her from filling her prescriptions. Id.

at 120. In September, Price reported that she felt depressed

- 3 - regarding her daughter. I d . at 129. In November, Price reported

experiencing sleep disturbance, appetite disturbance, and a lack

of energy. The treating nurse practitioner concluded that

Price's family-related stress was overwhelming the treatment for

her depression. I d . at 146. The stress of dealing with her

family, in particular her daughter, was even causing physical

problems, as she complained during a January 2003 visit. I d . at

151.

In September 2003, the treating nurse practitioner noted

that Price denied experiencing "depression, anxiety, and mental

disturbance," but the nurse practitioner took no steps to curtail

or cancel Price's prescriptions for Zoloft and Klonopin. I d . at

179, 181. About one month later, though. Price's chief complaint

was depression and she complained of sleeping problems. While

meeting with a nurse practitioner. Price cried when relating her

difficulties at home, but also stated that she did not have

enough money to fill her prescriptions and asserted that she did

"not care about herself." I d . at 188. In November 2003, Price's

problems at home escalated when she struck her daughter, causing

the daughter to leave for a shelter. Dr. Hayes identified a need

to counsel Price about her anger management. I d . at 196.

- 4 - At a visit in February 2004, Price complained of depression,

but also expressed her desire to obtain a certified nurses

assistant job. I d . at 211. In March, Price informed Dr. Hayes

that she had been taking neither Zoloft nor Klonopin for several

months due to their cost, and Dr. Hayes noted that Price was

tearful, shaky, anxious and discouraged. I d . at 95. Her

situation had improved by April, and the treating nurse

practitioner noted that Price was "doing well stress wise at

home, feeling more at ease." I d . at 230.

Nevertheless, Dr. Hayes responded to a Social Security

questionnaire in June 2004 that Price had "multiple psychosocial

issues." I d . at 241. He repeated his findings of depression,

anxiety, impulsivity and neurodermatitis in a letter to the

Disability Claims Adjuster in September. He also opined, "I

believe it is near impossible for Kathy to hold down gainful

employment." I d . at 252.

Nurse Practitioner Blood ("NP Blood") of Concord Psychiatric

Associates treated Price for depression. I d .at 285. The sole

evidence in the administrative record of her treatment and

diagnoses, however, consists of a single medical source

statement. NP Blood's medical source statement concluded that

- 5 - Price had moderate, marked, and extreme impairments affecting her

ability to function in day-to-day life. It further stated that

Price's symptoms included poor concentration, impaired memory,

depressed mood, tearfulness, anxiety, agitation, poor coping

skills with stress management, and thoughts of suicide. I d . at

271-72. The medical source statement consisted entirely of

conclusions, however, with no supporting documentation.

At the hearing before the ALJ in November, Price testified

that she was very depressed and felt that she could not "go out

in the working world without breaking down and crying." I d . at

284. She reported that she was on multiple medications for her

emotional problems and was receiving treatment from Dr. Hayes,

Nurse Practitioner Joyce Blood, and Blair Ambrose (a counselor at

Riverbend). I d . at 285-89. She also commented that her family

caused her considerable stress and she was often afraid to go out

in public. I d . at 292.

B. The ALJ's Decision

In his March 2, 2006, decision, the ALJ followed the five-

step sequential evaluation process set forth in

to determine whether Price was disabled. I d . at 16. At the

third step, the ALJ determined that Price's depression, anxiety,

- 6 - and impulsive behavior did not meet or equal the criteria of §

12.04 of the Listing of Impairments.2 I d . at 24. This decision

was founded on the ALJ's conclusion that the record contained

evidence of appetite disturbance but no change in weight; sleep

disturbance that was solely attributable to physical pain;

inconsistent reports of decreased energy; no feelings of guilt or

worthlessness; no significant difficulty with concentration or

thinking except when she "has alot on her mind" (sic); and no

thoughts of suicide,3 hallucinations, or paranoid thinking. Id.

at 23 .

2 To meet the criteria for a depressive syndrome under § 12.04 of the Listing of Impairments, Price would first need to establish a medically documented persistence, either continuous or intermittent, of at least four of the following: (1) anhedonia or pervasive loss of interest in almost all activities; (2) appetite disturbance with a change in weight; (3) sleep disturbance; (4) psychomotor agitation or retardation; (5) decreased energy; (6) feelings of guilt or worthlessness; (7) difficulty concentrating or thinking; (8) thoughts of suicide; or (9) hallucinations, delusions, or paranoid thinking. Listing of Impairments § 12.04, 20 C.F.R. P t . 404, Subpt. P, A p p . 1. She would then need to establish that this disorder caused marked restrictions in at least two areas of functioning or a medically documented history of a chronic affective disorder with certain other factors. Id.

3 It is not clear why the ALJ concluded that there was no evidence of thoughts of suicide in the record. Although NP Blood's medical source statement did not specify the period during which Price experienced such thoughts, it did state that Price experienced "[tjhoughts of suicide." See T r . at 272.

- 7 - In assessing Price's residual functional capacity ("RFC"),

the ALJ found that she was able to perform light work with

limitations in stress tolerance. I d . at 25. Based on this RFC,

the ALJ found at step four that Price could return to her past

relevant work ("PRW") as a dishwasher and was therefore not

disabled. I d . at 24-25.

C. The Appeals Council Decision

After the ALJ's decision. Price requested a review by the

Appeals Council. The Appeals Council denied review. I d . at 6.

After obtaining counsel. Price then requested that the Appeals

Council reopen the decision, submitting records from Concord

Psychiatric Associates and Riverbend Mental Health, Inc. in

support of that request. The Appeals Council denied her request

to reopen. I d . at 10.

D. Evidence of Price's Disability in the New Materials

The new medical information that Price submitted to the

Appeals Council consists of two sets of treatment records, some

of which were in existence at the time of Price's November 2,

2005, hearing before the ALJ and some of which were generated

later. The first set of records consists of the office notes of

NP Blood at Concord Psychiatric Associates from June 2005 through January 2006. See Claimant's Request for Reconsideration of

Appeals Council's Denial of Claimant's Request for Review of

Administrative Law Judge's Decision Dated March 2, 2006 and For

Extension of Time to File Further Appeals with the U.S. District

Court, Ex. 1A, Matter of Kathleen L. Price, Claim No. XXX-XX-XXXX

(Soc. Sec. Admin. June 27, 2006) (hereinafter "Blood"). The

second set of records consists of clinical evaluations and office

notes from Riverbend Mental Health from September 2005 to May

2006. See Claimant's Request for Reconsideration, Ex. IB., supra

(Soc. Sec. Admin. June 27, 2006) (hereinafter "Riverbend"). For

clarity, I describe both sets of records together in

chronological order.

NP Blood observed that Price was experiencing "anhedonia"

during a June 2005 visit. (Blood at 1.) The counselors at

Riverbend noted "anhedonia" or a "markedly diminished interest or

pleasure in all activities every day" lasting from September 2005

to February 2006. (Riverbend at 9, 12, 39, 43, 46, 68.) During

her June 2005 visit to Concord Psychiatric, Price complained of

having a low appetite. (Blood at 2.) The counselors at

Riverbend observed "appetite disturbance" over a period of four

months starting in September 2005. (Riverbend at 9, 12, 39, 43,

- 9- 46.) Price mentioned that she had a significant change in weight

from this symptom (Riverbend 26, 33), but later a counselor noted

that Price's weight had not changed (Riverbend at 68). NP Blood

noted the symptom of "sleep disturbance" during three separate

visits in August 2005, September 2005, and January 2006. (Blood

at 3, 5, 7.) The symptom persisted for three months while Price

was in treatment at Riverbend. (Riverbend at 9, 11, 12, 16, 39,

43.) NP Blood originally attributed Price's sleep disturbance to

physical suffering from back pain (Blood at 1), but she later

characterized it as a symptom of Price's depression (Riverbend at

9). NP Blood noted that Price suffered from "low motivation . .

. and low energy" during a June 2005 visit. (Blood at 1.) The

counselors at Riverbend described the symptom as "decreased

energy" over a period of four months starting in September 2005.

(Riverbend at 9, 11, 39, 40.) In August and September 2005, NP

Blood noted the symptom of feelings of guilt and worthlessness.

(Blood at 3, 5.) The counselors at Riverbend observed that these

feelings lasted from September 2005 to February 2006. (Riverbend

9, 11, 12, 16, 39, 40, 43, 46, 73.) NP Blood recorded that Price

was having thoughts of suicide in June and August of 2005.

(Blood at 1, 2, 3.) At sessions at Riverbend, Price communicated

- 10 - thoughts of suicide persisting for eight months, starting in July

2005. (Riverbend at 2, 9, 11, 12, 17, 39, 40, 43, 46, 56, 61,

68 . )

About two weeks after her hearing in November 2005, Price's

suicidal thoughts escalated to the point that she had herself

voluntarily admitted to Concord Hospital for a psychiatric

hospitalization. At the hospital, the attending physician

observed that Price was experiencing decreased appetite with a

change in weight, sleep disturbance, decreased energy, feelings

of guilt, thoughts of suicide, and psychomotor slowing.

(Riverbend at 22, 26, 30, 33.)

II. STANDARD OF REVIEW

Under

(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 decision of the ALJ. My review is limited to

determining whether the ALJ used the proper legal standards and

found facts based upon the proper quantum of evidence. Ward v.

Comm'r of Soc. Sec..

(1st Cir. 2000); Nquven v.

Chater,

(1st Cir. 1999).

- 11 - The ALJ's findings of fact are accorded deference as long as

they are supported by substantial evidence. Ward.

. Substantial evidence to support the ALJ's factual findings

exists "if a reasonable mind, reviewing the evidence in the

record as a whole, could accept it as adequate to support his

conclusion." Ortiz v. Sec'v of Health & Human Servs..

(1st Cir. 1991) (quoting Rodriquez v. Sec'v of Health &

Human Servs..

(1st Cir. 1981)). If the

substantial evidence standard is met, the ALJ's factual findings

are conclusive even if the record "arguably could support a

different conclusion." I d . at 770. The ALJ's findings are not

conclusive, however, if they are derived by "ignoring evidence,

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

Nquven.

.

The ALJ is responsible for determining issues of credibility

and for drawing inferences from evidence in the record. Ortiz.

. It is the role of the ALJ, not the role of this

court, to resolve conflicts in the evidence.

Ill. ANALYSIS

Price's primary argument is that the matter should be

- 12 - remanded because the ALJ failed to adequately develop the

record.4 The ALJ's decision to deny benefits rested in part on

the apparent lack of evidence of certain symptoms of depression

required to meet Listing 12.04. Price argues that the ALJ was at

fault for the absence of this evidence because Price was

unrepresented at the hearing, the absence of these records

constituted a gap in the record, the ALJ was aware of that gap,

the ALJ took insufficient efforts to obtain the records from NP

Blood and Riverbend that could have filled that gap, and the gap

might reasonably have affected the ALJ's ultimate decision to

deny benefits.

As the Supreme Court has explained, "Social Security

proceedings are inquisitorial rather than adversarial. It is the

ALJ's duty to investigate the facts and develop the arguments

both for and against granting benefits." Sims v. Apfel,

(2000). The ALJ's duty to develop the record is

4 Price also argues that the case should be remanded because (1) Price's decision not to hire an attorney or other representative was not knowing and voluntary, and (2) the ALJ failed to accord the proper weight to NP Blood's assessment of Price's non-exertional limitations. The first argument is clearly meritless. I need not consider the second because it is mooted by the need to consider additional evidence from NP Blood on remand.

- 13 - heightened if the plaintiff is unrepresented by counsel at the

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

(1st Cir. 1987), or if there is a gap in the record and

the ALJ could have filled in that gap without undue effort,

Currier v. Sec'v of Health. E d u c . & Welfare.

(1st Cir. 1980) ("we believe this responsibility increases . . .

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.").

The case of Heggartv v. Sullivan.

(1st Cir.

1991), whose facts are similar to the case at bar, is

instructive. In Heggartv. the claimant was unrepresented and

proffered neither office notes nor reports from a Dr. Bixby, who

was treating the claimant's allergies at the time of the hearing.

. The ALJ told the claimant that he would obtain

the necessary information from Dr. Bixby after the hearing, but

failed to do so.

Relying primarily on older treatment

records, the ALJ then determined that the claimant's eczema did

not meet Listing 8.05. I d . at 994. The court found that the ALJ

failed to adequately develop the record because the absence of

- 14 - Dr. Bixby's treating records created a gap in the record as to

the current severity of the claimant's eczema. I d . at 997.

Without Dr. Bixby's records, the only medical evidence on this

point consisted of a brief set of hospital records indicating

that the claimant received allergy shots in 1988, a "cursory"

report from a consulting rheumatologist describing the claimant

as suffering from "severe eczema," and RFC forms from two non­

examining physicians.

For the reasons set forth below, I agree with Price that the

ALJ breached his duty to develop a full and fair record from

which to make a reasonable determination regarding Price's

disability.

First, because Price was unrepresented during the hearing,

the ALJ had a heightened duty to develop the record. See

Evangelista.

.

Second, a gap existed in the record in that it contained

neither the office notes supporting NP Blood's diagnoses nor any

treatment records from Riverbend. The ALJ was clearly aware of

this gap; the ALJ asked Price several questions about her

treatment at Riverbend during the hearing and specifically

mentioned the absence of NP Blood's office notes in his decision.

- 15 - T r . at 21, 288-89. Additionally, it is significant that NP

Blood's medical source statement identified "[t]houghts of

suicide" as one of Price's symptoms. This means that the record

before the ALJ alerted him to the possibility that this symptom

could be both persistent and medically documented. This

triggered a duty on the part of the ALJ to further develop the

record regarding that and other symptoms of a depressive

syndrome. See Deblois v. Sec'v of Health & Human Servs..

(1st Cir. 1982) (finding that the ALJ had a duty,

once on notice of the fact that the claimant's mental illness

might have originated earlier, "to develop the record of the

etiology of the illness, its course, and its severity.").

It would not have required "undue effort" for the ALJ to

obtain the missing records, because the ALJ presumably could have

remedied their absence by sending more specific follow-up

requests to NP Blood and to Riverbend. See Currier,

. Moreover, the efforts the ALJ did take to obtain additional

records from Price's treating sources were inadequate,

particularly in light of the ALJ's statement to Price that he

would try to obtain medical records from NP Blood and Counselor

Ambrose and "get all that information into the record." T r . at

- 16 - 294; see Heggartv,

(finding a heightened duty to

develop the record where the ALJ specifically informed the

claimant that he would arrange to obtain the treating physician's

records). Under the relevant regulations, the ALJ is to "make

every reasonable effort" to assist claimants in obtaining medical

reports from their treating sources.

(d).

"Every reasonable effort" means an initial request for evidence

from a medical source and one follow-up request if the evidence

is not received.

(d)(1). The ALJ's efforts

to obtain medical records fell short of this standard. Following

the hearing, the ALJ requested additional medical records from NP

Blood,5 but did not attempt to contact Counselor Ambrose,

possibly out of an erroneous belief that NP Blood was also

employed by Riverbend. Moreover, when NP Blood responded by

providing completed physical and mental medical source statements

but omitted her office notes, the ALJ failed to make a follow-up

request for those notes. T r . at 84, 267-73.

5 The ALJ also twice requested updated records from Dr. Hayes. T r . at 85, 86. Those records are not, however, material to the issues addressed in this appeal.

- 17 - Finally, the resulting gap in the record is significant.

Had the ALJ obtained NP Blood's office notes and the Riverbend

treatment records, his decision might reasonably have been

different. Rather than merely having NP Blood's conclusory

assertions of disability, the ALJ would have had an extensive

treatment record that provides substantial evidence of the

affective disorder symptoms he found lacking in the record. If

credited, these medical records show that Price repeatedly

experienced anhedonia and a pervasive loss of interest, suicidal

thoughts, feelings of guilt and worthlessness, decreased energy,

and sleep disturbance. Together, these symptoms appear to

satisfy the first prong of the listing for an affective disorder

disability (a "[m]edically documented persistence, either

continuous or intermittent, of . . . [d]epressive syndrome

characterized by at least four" out of nine possible symptoms,

see Listing of Impairments § 12.04, 20 C.F.R. P t . 404, Subpt. P,

App. 1). If that first prong is satisfied, the ALJ would need to

consider whether those symptoms resulted in marked restrictions

in at least two areas of functioning or a medically documented

history of a chronic affective disorder with certain other

factors — questions that he never reached in his March 2, 2006,

- 18 - decision. See T r . at 23; see also Listing of Impairments §

12.04, 20 C.F.R. P t . 404, Subpt. P, App. 1. For the foregoing

reasons, then, the ALJ failed in his duty to adequately develop

the record.

IV. CONCLUSION

The ALJ failed to adequately develop the administrative

record. This failure justifies a remand under sentence four of

(g).6 See Seavev v. Barnhart.

(1st

Cir. 2001) ("Sentence six has been referred to as a 'pre-judgment

remand, ' employed where the federal court has not ruled on the

validity of the Commissioner's position, while sentence four has

been referred to as a 'post-judgment remand.'"); see also Buckner

v . Apfe1 ,

(8th Cir. 2000) (remanding under

sentence four to correct ALJ's failure to develop the record).

Accordingly, I grant in part Price's motion to reverse (Doc. No.

7), deny the Commissioner's motion to affirm (Doc. No. 8), and

remand this case to the Social Security Administration. The

6 Because the ALJ's failure to develop the administrative record requires a sentence four remand, I need not address Price's alternative argument for a remand under sentence six of

0 5 (g).

- 19 - clerk is directed to enter judgment in accordance with this order

and close the case.

SO ORDERED.

/s/Paul Barbadoro____________ Paul Barbadoro United States District Judge

September 2, 2008

cc: Elizabeth R. Jones, Esq. Robert Rabuck, Esq.

- 20 -