Page v . Commissioner, SSA 08-CV-340-JD 03/16/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michele L . Page

v. Civil N o . 08-cv-340-JD Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

O R D E R

Michele L . Page seeks review, pursuant to

(g), of the Commissioner’s decision denying her application

for Social Security Disability Benefits. Page contends that the

decision should be reversed because the Administrative Law Judge

(“ALJ”) ignored Page’s mother’s testimony at the hearing,

improperly evaluated Page’s credibility, relied on an outdated

residual functional capacity evaluation, erred in failing to

contact one of Page’s treating physicians to provide a more

complete evaluation, failed to properly evaluate her limitations,

and ignored the vocational expert’s testimony about her work

restrictions. The Commissioner contends that the decision should

be affirmed. Background

Page filed an application for Disability Insurance Benefits

in February of 2003, claiming a disability as of June 3 0 , 2000,

due to anxiety and depression. Her application was denied

initially and again following a hearing. When she sought review

in this court, the Commissioner filed an assented-to motion to

reverse the decision and to remand the case to the ALJ to develop

the evidence pertaining to Page’s former work and the amounts she

earned in each occupation. Page filed a second application for

benefits, which was consolidated with the pending application.

The medical record shows that Page was first treated for

anxiety at Dover Internal Medicine in May of 1999, where she was

prescribed Xanax, Zoloft, medications used to treat major

depressive disorder and panic disorder, and encouraged to seek

counseling. Her next visit was in February of 2002 following the birth of her daughter. At that time, Cheryl Corrao, PAC, noted

that Page had been treated for anxiety in the past but that

anxiety was no longer a problem. In August of 2002, however,

Page returned with complaints of anxiety, and Corrao prescribed

Effexor and Xanax. Corrao noted that Page had had mild anxiety

with a history of phobia about leaving her home but had improved

with medication through March of 2003. Corrao also noted that

Page had not sought counseling.

2 On May 1 4 , 2003, Thomas Lynch, Ph.D., performed a

consultative evaluation of Page. Lynch noted that Page had

emotional difficulties, including panic attacks, and that she had

stopped working when her daughter was born. He also noted that

she had become accustomed to staying at home to take care of her

daughter and her disabled mother. Page told Lynch that she was

taking correspondence college courses. Although Page appeared to

be somewhat anxious and reported stress related to taking care of

her mother and daughter, Lynch found her within normal limits.

Lynch concluded that Page had intact understanding and

memory and could perform basic tasks of housekeeping and

childcare. He also found that she had normal social skills and

otherwise functioned within normal limits except that she had

difficulty maintaining herself outside of her own home. He

diagnosed panic disorder with mild to moderate agoraphobia and

adjustment disorder with depressed mood. Because of a lack of treatment, Lynch stated that Page’s prognosis was guarded but

noted that if she obtained treatment, she could improve.

On May 2 8 , 2003, a state agency psychologist, Nicolas S .

Kalfas, Ph.D., completed a Psychiatric Review Technique Form

(“PRT Form”) and Mental Residual Functional Capacity Assessment

based on a review of Page’s file and records. He relied heavily

on Lynch’s evaluation. He found only mild or moderate

3 limitations. On the PRT Form, Kalfas indicated that Page

suffered from an anxiety-related disorder with recurrent severe

panic attacks, which occurred, on the average, at least once a

week. He also checked a box for a “medically determinable

impairment . . . that does not precisely satisfy the diagnostic

criteria above.” Statement of Facts at 1 0 . He found that Page could work without unreasonable disruptions if she were given

time to adapt to a work environment and provided a somewhat

isolated work area in a low stress environment. He noted Page’s

difficulty in leaving her home.

In August and September of 2003, Page was seen by Carla

Contarino, Ph.D., for psychological evaluation and treatment with

counseling. Contarino noted that Page was extremely anxious and

diagnosed a panic disorder with agoraphobia. Contarino

recommended relaxation techniques and anger management. On a Medical Assessment of Ability to do Work-Related Activities

(Mental) form, Contarino indicated that Page often had difficulty

coming to counseling sessions but rated her fair to good in all

areas of evaluation. She also stated that Page had limited

ability to relate socially and to maintain focus and performance.

She further stated that Page’s anxiety could impair her

reliability and predictability. Contarino diagnosed panic

disorder with agoraphobia, finding Page seriously limited in half

4 of the categories rated. In a letter to Page’s attorney,

Contarino stated that Page did not attempt to do the prescribed

anxiety reduction exercises and did not demonstrate motivation to

solve her problems.

Page also continued to treat with Corrao at Rochester Hill

Family Practice in 2003 and 2004. In May of 2004, Corrao completed a Medical Source Statement of Ability to do Work-

Related Activities (Physical), in which she noted only one

functional limitation, which was an inability to drive due to

anxiety. She also completed a mental impairment questionnaire

which stated that Page displayed phobias about leaving her home,

had difficulty concentrating, and needed psychiatric care.

Corrao also noted that she had not observed Page’s anxiety

attacks and that Page was tolerating her medication.

In November of 2004, Page made a report of her daily activities and functioning. She said that she did not drive

because of her medications and that she could not tolerate being

in a car or around other people. She reported that she did

housework and took care of her daughter, her mother, and their

dog. She also said that she did not go outside except to take

her daughter into the yard and to put the dog out. She also

reported that she had difficulty with memory, understanding,

5 following instructions, paying attention, getting along with

others, and in handling stress and change.

From March through August of 2005, Page was seen by a family

practitioner, D r . Terry Bennett. He prescribed Effexor for

anxiety. D r . Bennett completed a Medical Assessment of Ability

to do Work-Related Activities (Mental) on September 2 7 , 2005, in which he found that Page had marked limitations in her ability to

do all but four work-related activities.

A hearing was held on Page’s first application before ALJ

Robert Klingebiel on June 1 0 , 2004. Page was represented by an

attorney, and Page’s mother, Linda McGhee, attended the hearing.

Page did not attend, and her attorney explained she was unable to

attend because of her anxiety and agoraphobia. The ALJ issued

his decision in September of 2004, denying Page’s application for

benefits. As is noted above, that decision was reversed and remanded for further proceedings, and Page’s subsequent

application was consolidated with the first application.

On remand, ALJ Klingebiel held a hearing on October 2 7 ,

2005. Page’s counsel and her mother attended the hearing, and

her mother testified. A vocational expert also testified.

McGhee testified that Page had lived with her since 1999 and that

at the time of the hearing, Page, her husband, and her daughter

all lived with McGhee. She said that Page had worked at

6 D’Angelos Restaurant until 2000, but that McGhee had to drive her

to work because of her panic attacks. McGhee testified that Page

had anxiety and depression, that she would get frustrated and

angry, that she would not go out, and that if she were in the

car, McGhee would have to stop frequently to let her get out.

She also testified that some of the medications made Page tired and did not help her get out of the house.

In questioning the vocational expert about work that a

hypothetical person could do with certain limitations, the ALJ

described a younger individual, with a high school education, and

with no physical limitations. The ALJ described non-physical

limitations as someone who could only do relatively simple

transactions or routine tasks, who would need a job that did not

require a great deal of team interaction or fast paced work, who

would have minimal interaction with the public and co-workers, and who would have only occasional interaction with supervisors.

The vocational expert recommended jobs as a telemarketer. When

the ALJ asked about cleaning jobs, the vocational expert answered

that many of the jobs require work as a team. They also

discussed other possible work options.

Page’s attorney questioned the vocational expert about the

requirements of some of the jobs that had been discussed. The

vocational expert testified that if the applicant was unable to

7 ride in a car and would not leave her home, no employment would

be available for her. The ALJ decided that more time was needed

to get vocational information.

A supplemental hearing was held on May 3 , 2006. McGhee

attended the hearing but was not asked to testify, based on

Page’s attorney’s proffer that McGhee would confirm that Page’s condition had not changed since the last hearing. Page did not

attend. A new vocational expert testified. In response to the

limitations posed by the ALJ, the vocational expert testified

that such a person could work as an office cleaner, janitorial

worker, or chambermaid. At the end of the hearing, the ALJ asked

Page’s attorney if there were any other medical records that he

did not have, and the attorney responded that he was not aware of

other records. Page’s attorney stated that he had checked with

Dr. Bennett and that the only new records were for refilling prescriptions for medication.

The ALJ issued his decision on June 2 3 , 2006. He found that

Page had a severe impairment caused by panic disorder with mild

to moderate agoraphobia, which did not meet or equal any of the

listed impairments. He found that Page’s description of her

limitations was not entirely credible. The ALJ found that Page

retained the residual functional capacity to work in a low stress

environment without constant interaction with other people, to

8 occasionally interact with the public, to have occasional social interaction with co-workers and supervisors. He concluded that Page had no relevant past work but that she retained the ability to perform other work in the national economy. Based on those findings, the ALJ determined that Page was not disabled. The Appeals Council denied Page’s request for review, making the ALJ’s determination the final decision of the Commissioner.1

Discussion

A five-step process is used to evaluate an application for

benefits.

(a). The applicant bears the

burden through the first four steps to show that she is disabled.

Freeman v . Barnhart,

(1st Cir. 2001). At the

fifth step, the Commissioner bears the burden of showing that

jobs exist in the national economy that the applicant can

perform.

The court’s review under § 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen v .

Chater,

1 , 35 (1st Cir. 1999). If the ALJ’s factual

1 On March 2 , 2009, Page moved for an extension of time to respond to the Commissioner’s motion to affirm. She then filed her response on March 1 2 , 2009. Given the outcome, it is not necessary to consider Page’s response.

9 findings are supported by substantial evidence in the record,

they are conclusive, even if other evidence would support a

contrary conclusion. Id.; Tsarelka v . Sec’y of Health & Human

Servs.,

(1st Cir. 1988). Substantial evidence

is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v . Perales,

(1971).

A. Mother’s Testimony

Page’s mother, Linda McGhee, testified at the hearing held

on October 2 7 , 2005, and attended but did not testify at the

hearing held on May 3 , 2006. The ALJ’s decision does not mention

the substance of McGhee’s testimony. Page contends that the ALJ

was required t o , but did not, consider her mother’s testimony.

In the process of determining whether a claimant is

disabled, an ALJ is required to consider lay witness testimony

about the severity of the claimant’s limitations and her ability

to work.

(d)(4);

(c)(3);

Willcockson v . Astrue,

7 8 , 881 (8th Cir. 2008); Stout

v . Comm’r, Soc. Sec. Admin.,

(9th Cir. 2006).

If an ALJ chooses to disregard lay witness testimony, he must

give reasons for doing so that are specific to each witness.

Bruce v . Astrue, --- F.3d ---,

(9th Cir.

, 2009). It is error to ignore completely testimony from

witnesses, such as family members, who may be the only ones who

observe a claimant’s limitations. Willcockson,

.

The ALJ did not mention McGhee’s testimony in his decision.

The Commissioner asks the court to assume that the ALJ considered

McGhee’s testimony and also argues the ALJ would have discredited McGhee’s testimony for the same reasons that he found Page’s

statements about her limitations not entirely credible. Neither

the legal standard nor the record would support an assumption

that the ALJ considered McGhee’s testimony. Alternatively, the

Commissioner asserts that substantial evidence in the record

supports the ALJ’s decision, making any failure to consider

McGhee’s testimony harmless.

B. Record Evidence

In her disability report, which is dated March 3 0 , 2003,

Page wrote that she had anxiety, depression, and panic attacks

that kept her from going out of the house and from riding in a

car. She wrote that she stopped working because she did not want

to go out of the house or to be around people. She explained

that she was taking medication, Effexor, which helped somewhat,

but that she still was not able to leave the house except for

medical appointments.

11 The ALJ found that Page had a panic disorder with mild to

moderate agoraphobia, which could be expected to produce the

symptoms Page described but not with the intensity, duration, and

limiting effects that Page claimed. The ALJ found Page’s

descriptions of her limitations were not entirely credible

because she had not followed prescribed treatments at all times, because she was able to care for her daughter competently,

because she was able to concentrate and stay focused, and because

she was taking a correspondence college course. In making that

assessment, the ALJ relied on notes made by PAC Corrao, D r .

Lynch, and D r . Contarino. The ALJ did not credit D r . Bennett’s

opinions, finding them unsupported by the record.

The ALJ concluded that Page would be able to work in a low

stress environment, with only occasional interaction with the

public, with other co-workers but not in the context of work teams or in an environment that required constant and physically

close contact with other workers. The ALJ also found that Page

could deal appropriately with supervisors on an occasional basis

but not where supervision is constant, frequent, or physically

close. Based on the vocational expert’s opinion, the ALJ

concluded that Page could work as an office cleaner or as a

chambermaid.

12 Page contends that the ALJ did not properly assess her

credibility or the record evidence. Because she did not testify

or attend the hearings, the ALJ’s assessment of Page’s

credibility was not based on his personal observations of her.

Instead, his credibility assessment merely compared her

statements in her disability report with the medical record, an exercise that is equally available to the reviewing court. As a

result, the credibility determination is not entitled to the same

deference accorded assessments that are made after observing the

claimant and hearing her testimony. Cf. Frustaglia v . Health &

Human Servs.,

9 2 , 195 (1st Cir. 1987) (“The credibility

determination by the ALJ, who observed the claimant, evaluated

his demeanor, and considered how that testimony fit in with the

rest of the evidence, is entitled to deference, especially when

supported by specific findings.”). The record is mixed as to the severity of Page’s mental

impairments. Her medical records show consistent diagnoses of

anxiety, panic attacks, and agoraphobia with temporary periods of

improvement. The records also show that she did not consistently

comply with her treatment options. Contarino stated in October

of 2003 that Page did not try the relaxation techniques Contarino

suggested to reduce her anxiety and to allow her to ride in a car

in order to attend a social security hearing. Contarino also

13 stated that Page did not show motivation to overcome her anxiety.

In September of 2005, Bennett indicated on a Medical Assessment

of Ability to do Work-Related Activities (Mental) form that Page

was markedly limited in her abilities as to all but four of the

categories. Bennett, however, did not provide any medical

reasons for his assessment. McGhee testified in October of 2005 that Page could not

drive because of panic attacks, that she could not ride in a car

for any distance because of anxiety, and that she had witnessed

Page’s panic when she tried to leave the house. McGhee explained

that Page did not try Contarino’s treatment suggestions, which

included taking occasional long car trips and other de-

sensitizing activities, because Page felt Contarino was pushing

her to do things she could not d o . McGhee testified that Page’s

inability to leave the house was becoming progressively worse, despite her medication regimen.

The ALJ relied on Lynch’s consultative evaluation, done in

May of 2003, to find that Page was able to sustain focus and

concentration and was able to do college level work. He noted

Corrao’s assessment in August of 2003 that Page could not drive

but that she was able to stay focused and took good care of her

daughter. The ALJ ignored Corrao’s assessment that Page had

difficulty concentrating. The ALJ referred to Corrao’s treatment

14 note from September of 2004 that Page was “doing well” on her

anxiety medication but ignored Corrao’s notes that Page’s

insurance no longer covered a psychologist or psychiatrist. The

ALJ also noted Contarino’s negative remarks about Page but

misspelled D r . Contarino’s name and referred to her as “he,”

indicating a less than careful review of the record. The ALJ concluded that Bennett’s evaluation in September of 2005, was

entitled to little weight because his findings were contrary to

the medical evidence and because Bennett did not provide clinical

observations to support his evaluation.

Although the evaluations include a broad range of

information about Page’s abilities to do work-related functions,

Page’s ability to focus, concentrate, and care for her daughter

are not the crux of her claimed disability. Instead, the issue

in this case is whether she can or cannot leave her home because of diagnosed panic attacks and agoraphobia. Page and her mother

claim that she cannot. None of the medical evidence demonstrates

that she can leave home, but some of the evidence suggests that

she is not taking advantage of treatment options or may lack

motivation to improve her functioning ability. Therefore, the

record does not provide strong evidence either way.

The vocational expert testified that there were jobs Page

could do if her agoraphobia and anxiety allowed her to leave home

15 to work in a low stress job that required only limited contact

with the public, co-workers, and supervisors. On the other hand,

the vocational expert testified that if Page had great difficulty

leaving home and could not tolerate an extended period away from

home, she could not work. He also testified that if Page had

moderate difficulty in being able to maintain a normal workday and work week, such that she might be absent in a range up to one

third of the time, she would not be able to work.

Under the circumstances, the record lacks substantial

evidence to support the ALJ’s residual functional capacity

finding and his conclusion, based on the expert witness’s

testimony incorporating the residual functional capacity finding,

that Page could work as an office cleaner and as a chambermaid.

As a result, the ALJ’s failure to consider McGhee’s testimony was

not harmless. Lacking substantial evidence, the ALJ’s decision must be reversed.

Conclusion

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

and remand (document n o . 9 ) is granted. The claimant’s motion to

extend the time to file a response to the Commissioner’s motion

to affirm the decision (document n o . 15) is terminated. The

response was not considered in deciding the case. The motion to

16 affirm (document n o . 13) is denied.

The case is remanded under sentence four for further

administrative proceedings. ALJ Robert Klingebiel heard the case

originally and after the first remand. If the Appeals Council

again remands the case to an ALJ for further proceedings, it

shall be assigned to a different ALJ. The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________ >h » V )Joseph (Joseph A. A. DiClerico, DiClerico, Jr. Ji__ . United States District Judge March 16, 2009

cc: Karen B. Fitzmaurice, Esquire Francis M. Jackson, Esquire T. David Plourde, Esquire

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