Duhaime v. SSA CV-09-29-PB 11/20/09 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Doreen Duhaime

v. Civil No. 09-CV-29-PB Opinion No.

Michael Astrue, Commissioner Social Security Administration

REPORT AND RECOMMENDATION

Plaintiff Doreen Duhaime appeals the final decision of

defendant Social Security Administration ("SSA") to discontinue

disability insurance benefits she had been receiving because of

depression and alcohol abuse in remission. On April 28, 2005,

the SSA notified plaintiff that her benefits had ceased effective

September 2004, based on a determination that her medical

condition had improved sufficiently to enable her to return to

her past work. Plaintiff appealed that decision, received a

hearing before an administrative law judge ("ALJ"), and in March

2007 was again denied continued benefits. The ALJ determined

plaintiff's benefits should have ceased on August 15, 2006,

however, rather than in September 2004. After the Appeals

Council denied further review, plaintiff commenced this action. Plaintiff now seeks a remand, claiming the ALJ's decision was

based on factual and legal errors. For the reasons set forth

below, I recommend that plaintiff's motion (document no. 9) be

granted and the matter be remanded for further consideration.

Discussion

1. Statement of Uncontested Facts.

Pursuant to this court's local rules, see United States

District Court for the District of New Hampshire Rule 9.1(d), the

parties filed a joint statement of facts (document no. 11) which

are part of the record and which I have reviewed. Only those

facts relevant to the disposition of this matter are discussed

below, as needed.

2. Standard of Review

An individual seeking social security benefits has a right

to judicial review of a decision denying the application. See

(g) (Supp. 2008). The court is empowered to affirm,

modify, reverse or remand the decision of the Commissioner, based

upon the pleadings and transcript of the record. See

The

factual findings of the Commissioner shall be conclusive, as long

as they are supported by "substantial evidence" in the record.

See Ortiz v. Sec'y of HHS,

(1st Cir. 1991)

2 (quoting

(g)). "Substantial evidence" is "'more

than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion" Richardson v. Perales,

(1971)

(quoting Consol. Edison Co. v. NLRB,

(1938));

see also Currier v. Sec'y of HHS,

(1st Cir.

1980). The Commissioner is responsible for resolving issues of

credibility and drawing inferences from the evidence in the

record. See Rodriguez v. Sec'y of HHS,

(1st

Cir. 1981) (reviewing court must defer to the judgment of the

Commissioner). The Court does not need to agree with the

Commissioner's decision but only needs to determine whether it is

supported by substantial evidence. See

A final decision denying benefits must be upheld unless it

is based on a legal or factual error. See Manso-Pizarro v. Sec'y

of HHS,

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

Hudson,

(1989)). If the ALJ made a legal or

factual error, the decision may either be reversed or remanded to

consider new, material evidence or to apply the correct legal

standard. See

(g); see also Martin v. Astrue, No.

C .A . 07-388A,

, *2-3 (D.R.I. Dec. 2, 2008) (citing

3 authority about when to remand and when to reverse); Evangelista

v. Sec'y HHS,

(1st Cir. 1987) (describing the

newness/materiality and the good cause showings that justify a

remand).

3. Analysis

Benefits awards like plaintiff received here are subject to

periodic review to determine whether continuing benefits are

justified. See Mathews v. Eldridge,

(1976)

(explaining that a claimant has a "continuing burden" to

demonstrate his disability); see also

(f)

(governing termination of benefits);

&

404.1594(a) (outlining disability review process). That periodic

review looks at a claimant's medical condition to determine

whether it has improved and, if so, whether that improvement

positively affects the claimant's ability to work. See

(f); see also

; Rice v. Chafer,

(1st Cir. 1996); Shepherd v. Apfel,

(10th Cir. 1999) (discussing the medical improvement standard).

The regulations provide:

A recipient of benefits . . . may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has

4 ceased, does not exist, or is not disabling only if such a finding is supported by -

(1) substantial evidence which demonstrates that:

(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and

(B) the individual is now able to engage in substantial gainful activity . . . .

(f). Accordingly, the initial, critical guestion

is whether plaintiff's condition has improved since the prior

award of disability benefits, before the guestions are considered

of whether the improved condition meets the listing reguirements

for disability and how that affects the ability to do work. See

Rice,

n.2 (explaining how meeting or failing to meet

a listing goes to the guestion of ability to work which is not

considered unless and until a medical improvement is first

established); see also Cogswell v. Barnhart, No. Civ. 04-171-P-S,

, *1-2 (D. Me. Mar. 14, 2005) (citing authority to

explain the need for actual physical improvement before ability

to work is considered).

Plaintiff argues the ALJ erred by (1) assessing her

continuing disability status based on the incorrect age of 30

5 years old when she was 51 years old at the February 2007 hearing;

(2) discounting the opinion of her treating physician. Dr. Eric

Knight; and (3) finding medical improvement despite the lack of

substantial evidence to support that conclusion. After carefully

reviewing the briefs and the record, I am persuaded that

defendant has not carried its burden of proving the conditions

which previously rendered plaintiff disabled have ameliorated,

see

(b)(2)-(5), and that plaintiff has

identified sufficient flaws in the ALJ's analysis to justify a

remand to reconsider the evidence. I begin with the third

argument, which subsumes the second, because the first argument

concerning plaintiff's age is relevant to her ability to be

substantially gainfully employed, which vocational assessment is

not considered unless medical improvement has first been

established. See

(a) & 404.1563.

(a) Medical Improvement

Mental impairments are reviewed according to the rules set

forth in the regulations, which reguire the ALJ to follow a

special technigue to establish the existence of an impairment and

then to determine its severity. See 20 C.F.R. § § 404.1520

(providing the five step disability evaluation process), §

6 404.1520a (governing mental disability in particular) &

§ 404.1594 (outlining steps to follow for continuing disability

review). The regulations reguire first that medical evidence

demonstrate the existence of an impairment, before the assessment

progresses to determining its severity and resulting functional

limitation. See id. § 404.1520a (b) .1 Similarly, at the periodic

review stage, the ALJ must first determine if there has been any

medical improvement in the impairment before progressing to the

analysis of any resulting functional limitations. Id. §

404.1594(a) & (b) (1) .

The regulations define "medical improvement" as "'any

decrease in the medical severity' of an impairment, and any such

decrease 'must be based on changes in the symptoms, signs and/or

laboratory findings' associated with the claimant's impairment."

Rice,

(guoting

(b)(1)). To

determine whether plaintiff had medically improved, the ALJ was

1Once a medically determinable mental impairment has been established, its severity is determined by referring to a set of "Listings." See

§§ 404.1520(a) (4) (ill)& 404.1525; see also 20 C.F.R. Ch. Ill, P t . 404, Subpt. P, Ap p . 1 (the "Listings"), § 12.00. The Listings set forth medical findings, referred to as "Paragraph A" criteria, and impairment-related functional limitations, referred to as "Paragraph B" criteria. See id. § 12.00A. There are additional functional criteria set forth in Paragraph C, which become relevant only if the Paragraph B criteria are not satisfied.

7 required to compare the medical evidence from June 1999, when she

was initially found disabled, to the medical evidence current at

the time of his review, to see if there were any "changed

symptoms, signs and laboratory findings [which] are the only

relevant indicia of medical improvement under the regulations."

Id. (reversing for legal error because ALJ found claimant no

longer met a listing but failed to compare the medical evidence

(emphasis in original)); see also

(b)(7)

(defining point of comparison) & § 404.1594(c) (providing steps

to follow to determine medical improvement). My review of the

record indicates the ALJ did not make the requisite comparison.

(i) The ALJ's Findings

Without citing any diagnostic tests, professional

evaluations or other evidence that could be understood as

depicting a symptom, sign or laboratory finding, the ALJ found:

The record shows no continuing limitations in basic work activities from her alcohol abuse. As for her depression, the record shows improvement in the criteria in Section 12.04B of the Listings, as discussed below.

Certified Copy of the Record ("CR") at 16. The direct cite to

subsection 12.04B, which describes functional limitations,

unambiguously reveals the error in the ALJ's analysis, which assessed plaintiff's "medical improvement" based on her

functional limitations without first determining whether there

were documented changes of any improved medical signs or

symptoms. The ALJ explained plaintiff's medical improvementas:

I do not find more than mild limitations as of August 15, 2006 in the claimant's performance of activities of daily living, her social functioning and her concentration, persistence and pace to complete tasks.

Id. at 19. These are the Listings' category B criteria that are

not to be assessed unless and until medical improvement in signs,

symptoms and laboratory findings has been documented. This focus

on whether plaintiff met the Listings criteria for functional

limitation constitutes reversible error. See Rice,

-

3 & n.2 (reversing because ALJ erroneously focused on whether the

claimant's medical condition continued to meet the Listings

rather than focusing on whether laboratory findings demonstrated

improvement).

The law clearly reguires that medical improvement be

established first before the subordinate issue of whether that

improvement is related to functional ability to work is

addressed. See

("The guestion whether a prior listing

continues to be met plays at best a subordinate role in determining medical improvement and is not determinative.").

Although the ALJ concluded plaintiff had severe impairments in

the form of her depression2 and her fibromyalgia, see CR at 21,

he still determined that "the medical evidence establishes that

there has been improvement in the claimant's medical impairment

since August 15, 2006 which is related to the ability to work,"

without supporting that conclusion with any record citation.

It is unclear what medical evidence he refers to in making that

conclusion.

(ii) The Medical Evidence

The regulations are specific about what types of medical

evidence constitute "symptoms, signs and laboratory findings."

See

(describing need for medical evidence

to show impairment) & 404.1528 (detailing examples of signs and

laboratory findings). In particular, evidentiary proof must be

more than a claimant's own description of his or her impairment,

see

and must include:

2The ALJ found "the impairment to remain a severe one as she is expected to be vulnerable to one or two episodes of decompensation when faced with a lot of stress," yet still concluded there was "medical improvement in the claimant's depression." CR at 19. The ALJ provides no explanation for this inherent contradiction.

10 Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception. They must also be shown by observable facts that can be medically described and evaluated.. . . Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic technigues. Some of these diagnostic technigues include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests.

Both initially and on reconsideration, a "special technigue"

must be followed to evaluate the mental disability, see

§

404.1520a(b), which then must be documented in the decision to

show what evidence medically establishes the mental disorder.

See id. § 404.1520a(e). Nothing in the ALJ's decision indicates

that he followed the "special technigue" reguired by the

regulations to determine whether plaintiff's mental disability

was continuing. See id. & § 404.1520a(b).

At the comparison point of decision, June 2, 1999, plaintiff

was found to be suffering from alcohol abuse and depression, as

described in the regulations under Listing 12.04 for "Affective

Disorders." See CR at 23 (10/5/01 disability determination

report with onset date of 6/2/99). At that time. Dr. Craig A.

11 Dailey found plaintiff suffered from an affective disorder,

anxiety-related disorder, and substance addition disorder. See

CR at 118 (citing Listing §§ 12.04, 12.06 and 12.09). Dr. Dailey

identified plaintiff as suffering from anhedonia, sleep

disturbance, decreased energy, difficulty concentrating and

suicidal thoughts. CR at 121. He also found plaintiff to be

suffering from recurrent severe panic attacks and alcohol

dependance in partial remission. Id. at 123 & 126. Dr. Dailey

based his findings on the medical records from Dr. Benton, who

treated plaintiff for a long time, and the Elliott Hospital,

where she was hospitalized after her second suicide attempt. Id.

at 130. He also noted that plaintiff had been treated at

Hampstead Hospital for acute detoxification for her alcohol

dependence, and was receiving medication and counseling as part

of her treatment. Id. Based on this medical evidence. Dr.

Dailey concluded plaintiff had a severe mental disability

beginning June 2, 1999 and continuing through his October 2001

evaluation. Id. at 118-131 (plaintiff's "Psychiatric Review

Technigue" form).

By comparison, at the February 2007 hearing, the ALJ found

that plaintiff's mental disorders were not disabling as of August

12 15, 2006. In support of that conclusion, the ALJ relied heavily

on notes from Dr. William E. Evans, Jr., who saw plaintiff a few

times between August 2005 and October 2006 apparently at the

request of Medicare/Medicaid. At the initial August 2005 visit.

Dr. Evans completed a "Psychiatric Evaluation/Consultation" of

plaintiff. See CR at 383-84. Dr. Evans assessed plaintiff as

follows:

Axis I: Social phobia, provisional. Alcoholism in remission. Rule out pre-morbid learning disabilities.

Axis II: Personality disorder, NOS, provisional. Rule out Borderline Personality Disorder.

Axis III: Fibromyalgia and status post hysterectomy. Methadone dependent.

Axis IV: Deferred.

Axis V: 60.

Id. at384. He did not complete another assessment ofplaintiff,

and the record only contains notes from the othervisits he had

with plaintiff. Id. at 361-65. The notes reflect some

improvement ("no symptoms of suicidality or serious depression or

anxiety," id. at 365), but some continuing problems (sleep

difficulties, methadone dependent and drug seeking, see id.) .3

3Significantly. Dr. Evans also noted plaintiff's as "bright and euthymic," CR at 363, and plaintiff reported sleeping only a

13 This evidence is at best mixed, and appears to be consistent with

plaintiff's pattern of "waxing and waning" without sustained

improvement which the ALJ found prior to August 15, 2006. See CR

at 17 .

Dr. Evans referred plaintiff for counseling with John Colby,

who completed a "Consumer Intake Assessment" in August 2005 that

reflected her history with drug and alcohol abuse and her self-

reported problems with social phobias, depression and anxiety.

See id. at 386-96. Mr. Colby's "mental status exam" opinion was

fairly good, stating that plaintiff was cooperative and

appropriate throughout the interview, that her emotions, activity

level and speech were normal, that her judgment was sound, that

there was no apparent homicidal or suicidal ideation, and that

her insight was keen and she was oriented in person, place and

time. See id. at 386. Despite this report, plaintiff went to

Colby for psychotherapy for her flat affect, social phobia, and

chemical dependence problems. See id. at 392. In July and

August 2006, Colby noted that plaintiff continued to need

supportive psychotherapy, that included "reality-based cognitive

few hours a day without feeling tired, CR at 419, which could be considered medical signs for manic syndrome, a type of affective disorder. See Listing 12.04(A)(2).

14 messages that promote increased adaptive action" and "explor[ing]

substance abuse and recovery." Id. at 400-01. One of Colby's

last treatment notes, from September 2006, indicates plaintiff

reported feeling "full of life" but still needed supportive

psychotherapy with a treatment goal of "exploring her medication

management and discussing relapse prevention strategies." Id. at

366. Like Dr. Evans' opinion, Mr. Colby's assessment was of

mixed improvement, that could fairly be understood as cautiously

optimistic.

Aside from these treatment notes, there is no other medical

evidence cited in support of the ALJ's disability cessation

determination. Neither Dr. Evans nor Mr. Colby completed a

Psychiatric Review Technigue form or similar psychiatric profile

evaluation form that could be understood as a laboratory finding

or symptom, either in August 2006 or at any time after the

initial August 2005 evaluation.4 Notes from both evaluators stop

in October 2006. The ALJ appears to have relied heavily on

4There is a one other Psychiatric Review Technigue form, dated July 22, 2004, when plaintiff was determined to still be disabled based on her affective disorder. See CR at 188D-188H. Because is was done two years before the critical August 2006 date, it is irrelevant to plaintiff's disability status at issue now other than perhaps to illuminate the dearth of medical evidence supporting the ALJ's finding.

15 plaintiff's self-report to Dr. Evans in August 2006 that she

liked her job, was happy, and was decreasing her methadone

dosage. CR at 16. He cites several behavioral examples of her

improvement, including dining in restaurants, remaining upbeat

and euthymic, and abstaining from alcohol consumption, id., and

concluded this "evidence is consistent with very significant

improvement in the claimant's depression since the comparison

point of decision." Id. at 17. This reliance on plaintiff's own

account of her improvement is undermined by the ALJ also having

found that plaintiff was not credible. See id. at 18 & 21

(discrediting testimony about her alcohol use and her pain).

Without more medical evidence of improvement, I cannot find

that the ALJ's decision is based on substantial evidence. He was

reguired to assess specific symptoms of affective disorders, such

as: sleep disturbance, energy and activity levels, ability to

concentrate, feelings of self-worth, id. at 121, unpredictable

onset of anxiety or panic, id. at 123, and substance dependence,

id. at 126. See 20 C.F.R. § 1520a(e) (reguiring the ALJ to

document application of the mental disability determination

technigue); see also Listings § 12.04(A) (setting forth medical

criteria to show affective disorders); Santiago v. Barnhart, 386

(D.P.R. 2005) (requiring decision to actually

compare cited evidence of prior and current medical conditions to

show improvement). Though the evidence showed plaintiff was no

longer suicidal and no longer abused alcohol, it also showed that

she continued to be anxious in a variety of social settings, CR

at 19 & 415-16, and continued to suffer from addiction problems.5

See e.g. CR at 365-66 (treatment notes focusing on plaintiff's

drug dependency), 412 & 416-17 (plaintiff's testimony about her

drug addictions, and therapy). The ALJ concluded plaintiff

continued to be severely impaired by depression, CR at 21

(finding no. 3) and yet still determined, with no record citation

to support the finding, that her depression had medically

improved. See

These conflicting conclusions simply cannot

be understood as substantial evidence.

Significantly, the ALJ appeared to have given no weight to

Dr. Eric Knight's medical opinion about her impairments, which

5The ALJ specifically found plaintiff not to be credible about her use of alcohol, CR at 18, yet also decided to terminate her benefits in part because of her testimony that her alcohol did not impact her ability to work. See CR at 19. This selective finding of credibility is inherently contradictory and erodes the evidentiary basis of his decision.

17 also constitutes legal error.6 The regulations reguire that all

medical opinions be evaluated, see

(b), and

that treating physician's opinions be weighed more heavily than

consulting or examining physician's opinions because treating

physicians are "most able to provide a detailed, longitudinal

picture of your medical impairment(s)." See

§ 404.1527(d);

see also Rose v. Shalala,

(1st Cir. 1994)

(explaining weight to be accorded various medical opinions).

Since Dr. Knight was plaintiff's primary care physician whose

treatment relationship with plaintiff was substantially longer

than either Dr. Evans or Mr. Colby, his opinion should have been

considered, if not more heavily weighed, in the continuing

disability evaluation. See

Dr. Knight stated in his February 2007 evaluation of

plaintiff that her "Neuropsychiatric issues - interpersonal

interactions and crying with stress, [and] difficulties due to

depression, possible bipolar disorder" were other medical

6The ALJ relies on Dr. Knight's opinion only in the context of plaintiff's residual functional capacity ("RFC"). See CR at 19. Dr. Knight completed a "Medical Assessment of Ability to do Work-Related Activities (Physical)" on February 7, 2007, see id. at 355-59, determining plaintiff had several RFC limitations which the ALJ did not accept. See id. at 19. The record does not contain any other physical or mental RFC assessment.

18 findings that supported his assessment that plaintiff would

likely miss more than four days of work per month. Id. at 359.

Dr. Knight opined that plaintiff:

has been a patient in our office since 7/12/2004. At that time she reported a history of Major Depression with a guestion of Bipolar Disorder. She also presented a history of Rheumatoid Arthritis, Fibromyalgia and Melanoma. Since that time new chronic problems and diagnoses have included Hypothyroidism, Obstructive Sleep Apnea and Hypercolesterolemia.

While I am unable to comment on any changes prior to July 2004, I can confidently state that Ms. Duhaime has not had any significant improvement in her function, including potential ability to maintain gainful employment, since I first met her. If anything it appears that her capacity has decreased moderately over this period of time.

Id. at 360. Though this assessment is not inconsistent with the

other substantial evidence in the record, the ALJ appears not to

have given Dr. Knight's opinion any weight when he concluded

plaintiff had medically improved. Because his opinion was not

contradicted by other evidence in the record, the decision not to

factor Dr. Knight's opinion into the analysis constitutes legal

error. See

(d) (2)-(6) (explaining how to

weigh opinions of treating physicians that are not inconsistent

with other substantial evidence); see also Nguyen v. Chater,

(1st Cir. 1999) ("The ALJ's findings of fact . . .

19 are not conclusive when derived by ignoring evidence, misapplying

the law, or judging matters entrusted to experts."); cf. Keating

v . Sec'y of HHS,

(1st Cir. 1988) (rejecting

treating physician's opinion when contradicted by other medical

evidence).

The ALJ's failure to obtain medical evidence demonstrating

medical improvement and his improper evaluation of Dr. Knight's

opinion constituted legal errors. See Nguyen,

(reversing for legal error where ALJ's opinion was based on a

"dearth of evidence" which ignored uncontroverted evidence from

treating physician). The record does not contain substantial

evidence that plaintiff's mental impairments have medically

improved, and it was error for the ALJ to terminate her

disability benefits without the reguisite medical evidence of

improvement. As a result, a remand is necessary to assess

plaintiff's continuing disability in accordance with the

regulations.

(b) Work-Related Factors

While the lack of medical evidence to support the ALJ's

decision is a sufficient basis on which to remand this action, a

few additional issues bear noting.

20 First, the ALJ erroneously found that plaintiff was a 30

year old, "younger individual" on August 15, 2006, the cessation

date for her disability benefits. See CR at 21 (finding no. 9) .7

In fact, plaintiff was 50 years old on August 15, 2006, and was

51 years old at the February 12, 2007 hearing. She is a "person

closely approaching advanced age," see

(d), which

the regulations dictate may seriously affect an ability to adjust

to other work when combined with a severe impairment and limited

work experience.

Second, the record reflects that plaintiff also suffers from

fibromyalgia and rheumatoid arthritis. When a continuation of

benefits is under review, all current impairments must be

considered in addition to the previously determined impairment,

to see what plaintiff's functional capacity to work is. See

§ 404.1594(b)(5). Defendant carries the burden of showing that

plaintiff can engage in substantial gainful activity, considering

7Defendant argues the ALJ knew she was really older, since he stated her birthday correctly, see CR at 15 & 409, and saw her at the hearing. Regardless of whether the ALJ's reference to her age as 30 instead of 50 was a typographical error or an actual mistake, the description of her as a "younger individual (

)," CR at 21, strongly suggests his analysis assumed she was in fact 30 years old. On remand, plaintiff's correct age can be factored into the vocational analysis if the disability review progresses that far.

21 all of her impairments present at the time of the review.

Accordingly, the AJL must factor the impact of plaintiff's pain

and other limitations caused by her fibromyalgia and her

rheumatoid arthritis into his assessment of her continuing

disability status. See

& § 404.1594(b)(6); see also Avery v.

Sec'y of HHS,

(1st Cir. 1986) (identifying

factors relevant to the analysis of disabling pain).

Finally, the ALJ should not have relied solely on the Grid

to determine plaintiff's disability. See CR at 21 (finding no.

12) . As discussed above, that reliance was premised on factual

errors, including plaintiff's incorrect age and an incomplete

evaluation of her impairments. "The Grid is based on a

claimant's exertional capacity and can only be applied when

claimant's non-exertional limitations do not significantly impair

claimant's ability to perform at a given exertional level." Rose

v. Shalala,

(1st Cir. 1994). Without speculating

about what conclusion will be found following a proper evaluation

of plaintiff's impairments, "an expert's RFC evaluation is

ordinarily essential unless the extent of functional loss, and

its effect on job performance, would be apparent even to a lay

person." See Manso-Pizarro v. Sec'y HHS,

(1st

22 Cir. 1996). On remand, if medical evidence establishes plaintiff

has improved, vocational expert testimony regarding plaintiff's

limitations, including both her pain and her alcohol abuse in

remission, with properly framed hypothetical guestions about her

RFC considering her particular limitations, may be warranted.

See Rose,

(instructing that reliance on the Grid is

not dispositive where non-exertional limitations are present);

see also Nguyen,

(reversing in part for reliance

on the Grid which does not factor in pain); Arocho v. Sec'y HHS,

(1st Cir. 1982) (reguiring ALJ to frame the

hypothetical guestion to correspond to the medical conclusions so

the vocational expert's answer is relevant). In other words,

there must be substantial evidence to support the assumptions the

ALJ is making when asking the hypothetical guestion and upon

which the vocational expert bases his opinion. See id.; see also

Searles v. Apfel, No. Civ. 99-548-B,

, *7 (D.N.H.

Oct. 13, 2000) (reguiring ALJ to resolve ambiguities and to frame

the hypothetical to accurately reflect claimant's limitations);

Jolly v. Barnhart,

(D.S.C. 2006)

(reversing where vocational expert's hypothetical guestion failed

to consider several parameters, including closely approaching

23 advanced age).

Conclusion

For the reasons set forth above, I find that the ALJ's

decision is not supported by substantial evidence and recommend,

therefore, that plaintiff's motion for remand (document no. 9) be

granted and defendant's motion to affirm (document no. 10) be

denied. See Nguyen,

. I recommend this case be

remanded for further consideration consistent with the analysis

set forth herein. See

(g).

Any objections to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court's order. See Unauthorized Practice of

Law Comm, v. Gordon,

(1st Cir. 1992);

United States v. Valencia-Copete,

(1st Cir. 1986) .

James R. Muirhead United States Magistrate Judge

Date: November 30, 2009

24 cc: Jonathan P. Baird, Esq. T. David Plourde, Esq.

25