Hudon v. SSA CV-10-405-JL 9/20/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Candy Hudon

v. Civil No. lO-cv-405-JL Opinion No.

Michael Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

Cathy Hudon appeals the denial of her claim for disability

insurance benefits and supplemental security income benefits.

She contends that the Administrative Law Judge ("ALJ") did not

adequately account for the severity of her mental impairments in

the residual functional capacity assessment and did not give

appropriate weight to her treating source's opinion. The

Commissioner moves to affirm the decision, acknowledging certain

inconsistencies in the ALJ's decision but attributing them to

"scrivener's error." This court has subject matter jurisdiction

pursuant to

(g).

I. BACKGROUND

Hudon applied for social security benefits on September 5,

2007, claiming a disability beginning on March 15, 2007. Hudon

was thirty years old at the time of her application. She alleged that she was disabled by degenerative disc disease, depression,

anxiety, attention deficit hyperactivity disorder, personality

disorder, obesity, and a headache disorder.

A. Medical history and opinions

Hudon's medical records show that she began treatment for

back and leg pain in 2004. Tests revealed spinal abnormalities,

including degenerative disc disease. A functional capacity

assessment in December of 2004 indicated that she was limited to

sedentary work. Further testing in 2007 showed continuing

abnormalities.

Beginning in October of 2008, Dr. Carol Ribner provided

treatment to Hudon, as her primary care physician. Hudon had

recently been discharged from an addiction treatment program with

medication to control cravings. In January of 2009, Hudon began

psychotherapy with Elaine C. Davis, MS LCMHC MLADC.1 Following

the death of her mother, Hudon reported stress and other issues

to Dr. Ribner and to Davis.

1Although the parties do not explain Davis's degrees, which are indicated by the letters following her name, it appears that she holds a Master of Science degree and is a Licensed Clinical Mental Health Counselor and a Master Licensed Alcohol and Drug Counselor.

2 On September 18, 2009, Davis completed a "Medical Source

Statement of Ability to do Work-Related Activities (Mental)" in

which she indicated that Hudon had marked limitations in

understanding and memory, social functioning, and ability to

maintain concentration, persistence, or pace. On October 19,

2009, Davis provided a letter, stating that Hudon was unable to

work due to major depression, panic disorder, and post traumatic

stress disorder. In December, Dr. Ribner wrote that Hudon was

deeply depressed, had missed appointments, and had used drugs

after a fight with her daughter. Hudon told Dr. Ribner that she

was overwhelmed.

Hudon was hospitalized in February of 2010. She was

diagnosed with anxiety disorder, acute stress reaction, and other

mental health problems. In March of 2010, Dr. Ribner noted that

Hudon was somewhat improved but remained depressed.

State agency review during 2008 provided several opinions of

Hudon's limitations. Elizabeth Hess, Ph.D., did a consultative

psychological examination on May 26, 2008. Dr. Hess recorded

Hudon's statements about her symptoms and limitations. Dr. Hess

diagnosed Hudon with polysubstance dependence, attention deficit

and hyperactivity disorder and post traumatic stress disorder

(both based on her history), and personality disorder. Dr. Hess

said that Hudon could understand and remember basic work

3 instructions but that she would have significant difficulty

interacting with others and in sustaining and completing tasks.

A non-examining psychologist, Patricia Salt, PhD., completed

a Psychiatric Review Technigue Form based on Hudon's medical

records. Dr. Salt found marked limitations in social functioning

and in concentration, persistence, or pace. Dr. Salt also stated

that Hudon's polysubstance abuse could not be excluded for

purposes of evaluating her functioning.

Bruce Lipetz, Psy.D, also reviewed Hudon's records and

completed a Psychiatric Review Technigue Form. Dr. Lipetz

disagreed with both Dr. Hess and Dr. Salt. Dr. Lipetz concluded

that Hudon's polysubstance abuse was the most clear limiting

factor. He found no more than moderate limitations in the areas

of social functioning and concentration, persistence, or pace.

Dr. Fairley completed a physical residual functional

capacity assessment on June 4, 2008. He found that Hudon could

lift and carry twenty pounds occasionally and ten pounds

freguently; could stand, walk, and sit for six hours in an eight

hour work day; and could only occasionally do certain postural

activities. He also found that Hudon would reguire a sit or

stand option.

4 B. Administrative process and decision

Hudon's application for disability benefits was denied

initially on July 25, 2008. She requested a hearing, which was

held on April 6, 2010, in Manchester, New Hampshire. Hudon

testified in person at the hearing. Her representative appeared

by telephone, and a vocational expert testified by telephone.

The ALJ issued a decision on April 14, 2010, denying Hudon's

application for benefits. In the decision, the ALJ found that

Hudon had severe impairments of mild degenerative disc disease,

mild recurrent major depressive disorder, anxiety disorder,

personality disorder, and polysubstance abuse in partial

remission. The ALJ determined that Hudon retained the residual

functional capacity to perform light work with limitations for

occasional postural activities and for simple, repetitive work in

a low stress environment, meaning that she would have only

superficial social contact with her co-workers and supervisors

and only superficial contact with the public. Based on that

residual functional capacity, the vocational expert testified

that a person with Hudon's abilities and limitations could work

as a cleaner, a laundry worker, and in manufacturing sub­

assembler jobs. Relying on the vocational expert's opinion, the

ALJ found that Hudon was not disabled.

5 The Decision Review Board did not complete review within the

time allowed, making the ALJ's decision the final decision of the

Social Security Administration. Hudon filed for review in this

court.

II. APPLICABLE LEGAL STANDARD

"Judicial review of a Social Security claim is limited to

determining whether the ALJ used the proper legal standards and

found facts upon the proper guantum of evidence." Ward v. Comm'r

of Social Security,

(1st Cir. 2000) (citing

Nguyen v. Chater,

(1st Cir. 1999)). In addition,

it is the responsibility of the ALJ to resolve conflicts in the

evidence. Irlinda Ortiz v. Sec'y of Health & Human Servs.,

(1st Cir. 1991). If the ALJ's factual findings are

supported by "substantial evidence," they are "conclusive," even

if the court disagrees with the ALJ, and even if other evidence

supports a contrary conclusion.2

(g); see also,

e.g., Nguyen,

.

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Becker v. Sec'y of Health & Human Servs.,

, 36 (1st Cir. 1990) (guoting Richardson v. Perales,

(1971) ) .

6 That standard is not, however, "merely [a] rubber stamp [of]

the ALJ's decision." Scott v. Barnhart,

(7th

Cir. 2002) (quotation and bracketing omitted). If the ALJ's

decision was based on "a legal or factual error," or otherwise

unsupported by substantial evidence, then it must be reversed and

remanded under § 405(g). Manso-Pizarro v. Sec'y of Health &

Human Servs.,

(1st Cir. 1996); see also, e.g.,

Nguyen,

(noting that an ALJ's findings are not

conclusive where they are "derived by ignoring evidence,

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

III. ANALYSIS

Hudon moves to reverse and remand the decision denying her

application for benefits on the grounds that the ALJ's residual

functional capacity failed to account for the ALJ's finding that

Hudon had experienced three episodes of decompensation and that

the ALJ failed to give proper weight to the opinion of her

treating therapist. In response, the Commissioner argues that

the ALJ's finding that Hudon had experienced three episodes of

decompensation was "an obvious scrivener's error" and, therefore,

was properly omitted in considering her residual functional

capacity. The Commissioner also contends that the ALJ properly

assessed the medical opinions and that the ALJ's stated reliance

7 on the opinions of both Dr. Salt and Dr. Lipetz, which directly

contradict each other, was another scrivener's error. The

Commissioner contends that record evidence supports the ALJ's

decision.

A. Decompensation finding

In evaluating whether Hudon's impairments met or equaled a

listed impairment. Step 3 of the sequential analysis, the ALJ

stated: "As for episodes of decompensation, the claimant has

experienced three episodes of decompensation, each of extended

duration." Despite that finding, the ALJ wrote that Hudon had

not experienced "repeated episodes of decompensation" and found

that her impairments did not meet or equal a listed impairment.3

Hudon does not contest the ALJ's conclusion at Step 3 but

contends that the ALJ erred in not considering the episodes of

decompensation for purposes of assessing her residual functional

capacity.

" [Residual functional capacity ("RFC")] is what an

individual can still do despite his or her limitations . . . .

Ordinarily, RFC is the individual's maximum remaining ability to

3Later in her decision, the ALJ lists three episodes of hospitalization, which may be the episodes of decompensation she referenced in her findings at Step 3. See Admin. Rec. at 12.

8 do sustained work activities in an ordinary work setting on a

regular and continuing basis, and the RFC assessment must include

a discussion of the individual's abilities on that basis." SSR

96-8p,

, at *2 (July 2, 1996);

. In making that assessment, the ALJ "will consider

all of [the applicant's] medically determinable impairments of

which [the ALJ is] aware, including [the applicant's] medically

determinable impairments that are not 'severe,' as explained in

§§ 404.1520(d), 404.1521, and 404.1523 . . . ."

(a) (2) .

The Commissioner contends that the ALJ properly did not

consider the episodes of decompensation because the finding was a

scrivener's error. A scrivener's error is a transcription error

or a typographical error. See, e.g., U.S. Nat'l Bank of Ore. v.

Indep. Ins. Agents of Am., Inc.,

(1993); United

States v. Cintron-Echautegui,

(1st Cir. 2010);

OneBeacon Am. Ins. Co. v. Travelers Indem. Co.,

, 41-

42 (1st Cir. 2006) . In the context of social security cases,

errors in ALJ decisions have been excused as mere scrivener's

errors when the ALJ's intent was apparent. See Douglas v.

Astrue,

, at *3-*5 (D.S.C. Sept. 3, 2010) (citing

and discussing cases).

9 The ALJ's decompensation finding was made as part of the

Step 3 analysis. The ALJ stated that for purposes of the Step 3

analysis, to meet or equal a listed impairment, Hudon's mental

impairments would have to result in two of four marked

limitations, one of which was repeated episodes of

decompensation, each of extended duration. The ALJ then

explained that repeated episodes of decompensation meant three

episodes within a year or an average of one episode every four

months with a duration of two weeks.

The ALJ found that Hudon had only mild restriction in

activities of daily living and moderate difficulties with social

functioning and concentration, persistence, or pace. The ALJ

then made the finding that Hudon had experienced three episodes

of decompensation, each of extended duration. The ALJ concluded

that because Hudon's mental impairments did not result in at

least two marked limitations, she did not meet or equal the

listed impairment at Step 3.

The Commissioner argues that the decompensation finding was

a scrivener's error because the record does not support the

finding. Taken in context and considering the ALJ's later

reference to three hospitalizations, however, the record does not

necessarily show that the finding was an error. Further, the

decision does not show that the ALJ's intent was contrary to the

10 finding. The ALJ's finding of three episodes of decompensation

cannot be excused as an obvious scrivener's error. Therefore,

the ALJ's failure to address the finding in the context of

assessing residual functional capacity undermines the evidentiary

basis for the ALJ's decision.

B. Medical opinions

Hudon also challenges the ALJ's evaluation of the medical

evidence and argues that the ALJ improperly evaluated her

treating therapist's opinion. In making a disability

determination, the ALJ is reguired to consider "the medical

opinions in [the claimant's] case record together with the rest

of the relevant evidence [in the record]."

.1527 (b) .

The ALJ attributes weight to a medical opinion based on the

nature of the relationship between the medical provider and the

claimant. § 404.1527(d). An opinion based on one or more

examinations is entitled to more weight than a non-examining

source's opinion, and a treating source's opinion, which is

properly supported, is entitled to more weight than other

opinions. Id. A treating source's opinion on the nature and

severity of the claimant's impairments will be given controlling

weight if the opinion is "well-supported by medically acceptable

11 clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case

record." § 404.1527(d)(2). "If any of the evidence in [the

claimant's] case record, including any medical opinion(s), is

inconsistent with other evidence or is internally inconsistent,

[the ALJ] will weigh all of the evidence and see whether [she]

can decide whether you are disabled based on the evidence we

have." § 404.1527 (c) (2) .

The ALJ gave the opinions of both state agency physicians.

Dr. Lipetz and Dr. Salt, "significant weight" without

distinguishing between the opinions. The ALJ characterized

Elaine Davis as Hudon's treating source and wrote that she did

not give Davis's opinions significant weight because the opinions

were not supported by Davis's treatment notes.4 The ALJ also

stated that Davis's "treatment notes are consistent with the

4A treating source's opinion will be given more or less weight depending on the evidence provided to support the opinion, the degree to which it is consistent with the record, whether the source is a specialist in the field, and other factors that are raised by the claimant. § 404.1527(d). In all cases, the ALJ will explain the reasons for giving a treating source's opinion more or less weight. Id.; see also LaBregue v. Astrue,

, at *4-*5 (D.N.H. Jan. 28, 2011) .

As the Commissioner points out, however, Davis may not be a treating source. See

(a). Instead, the ALJ may have erred in her designation and should have treated Davis as an "other source." See

(d)(1); Randall v. Astrue,

, at *9 (D. Mass. Feb. 15, 2011).

12 state agency opinion as to the effect of claimant's psychiatric

condition on her capacity for work . . . Admin. Rec. at 13.

As the Commissioner acknowledges. Dr. Lipetz's opinion that

Hudon was able to sustain simple and repetitive work with

limitations on social contact was directly contrary to Dr. Salt's

opinion that Hudon had marked limitations in the areas of social

functioning and concentration, persistence, or pace. In fact.

Dr. Lipetz criticized Dr. Salt's opinion, stating that it was not

supported by the evidence. Therefore, the ALJ could not give

both opinions significant weight and is mistaken in saying that

Davis's treatment notes were consistent with both opinions.

The Commissioner attempts to explain the inconsistencies in

the ALJ's decision as another scrivener's error. That does not

appear to be the case. Instead, the ALJ misreported the record

evidence and, as a result, lacks consistent substantial evidence

to support the decision.

13 IV. CONCLUSION

For the foregoing reasons, Hudon's motion to reverse5 is

GRANTED. The Commissioner's motion to affirm6 is DENIED. The

case is REMANDED under sentence four of § 405 (g) .

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 20, 2011

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

5Document no. 9.

6Document no. 11.

14