UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Pavlakos

v. Civil No. 14-cv-442-JD Opinion No.

Carolyn Colvin, Acting Commissioner Social Security Administration

O R D E R

Robert Pavlakos seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of the

Social Security Administration, denying his application for

social security disability benefits and supplemental security

income. Pavlakos moves to reverse and remand the decision,

contending that the Administrative Law Judge (“ALJ”) erred in

finding that Pavlakos has the residual functional capacity to

perform past relevant work. The Acting Commissioner moves to

affirm the decision.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual

findings as long as they are supported by substantial evidence.

§ 405(g). “Substantial evidence is more than a scintilla. It

means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Astralis Condo. Ass’n v.

Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir.

2010). Substantial evidence, however, “does not approach the

preponderance–of-the-evidence standard normally found in civil

cases.” Truczinskas v. Dir., Office of Workers’ Compensation

Programs,

(1st Cir. 2012).

Background

The background information is summarized from the parties’

joint statement of material facts.

The record shows that Pavlakos has received treatment for

mental health issues since 1993 when he was in his twenties.

More recently, Pavlakos was diagnosed and treated for depression,

PTSD, and bipolar disorder. At the time of the hearing, Pavlakos

had been working part time, one hour a day for three days a week,

through a supported work program in which he was a member of a

six to eight member cleaning crew with two supervisors.

2 Previously, he had done maintenance work at an apartment complex,

worked as a manager of a storage facility, and worked as a

preparation cook at a hospital. He is now forty-six years old.

In 2006, Pavlakos was diagnosed with bipolar disorder, and

he began treatment at Northern Human Services in 2009. Dr.

Stacey Charron, a psychiatrist at Northern Human Services,

performed a psychiatric evaluation of Pavlavkos in April of 2009

for a prior social security application. Pavlakos was alert and

oriented and his insight and judgment were fair. Dr. Charron

noted that Pavlakos had been off of medication for a year, that

he was struggling with mood swings, and that his nightmares,

flashbacks, and “cues of trauma” were likely caused by PTSD. She

prescribed Lithium, required a recheck on medication levels in a

month, and recommended continued outpatient treatment.

Elizabeth Hess, Ph.D., completed a psychiatric evaluation of

Pavlakos for New Hampshire Medicaid Administration Services at

the end of April, 2009. Dr. Hess found that Pavlakos had “marked

latency retrieving information from memory,” disrupted attention

and concentration, marked functional loss in daily activities,

marked functional loss in social interaction, marked functional

loss in work-related task performance, and could not concentrate

or persist on tasks. Dr. Hess also found that Pavlakos had

3 trouble with complexity, lost track of his schedule, had

grandiose thinking, and would quit jobs impulsively. She

recommended that Pavlakos continue psychotherapy and medication.

Pavlakos received biweekly therapy sessions with Matt

Buteau, MS, at Northern Human Services. Northern Human Services

also provides other support services to Pavlakos, including a

case manager, supported part-time employment, and functional

support.

Pavlakos applied for benefits in July of 2011.1 As part of

the application process, Jane V. Buerger, Ph.D., completed a

Psychiatric Review Technique on February 22, 2012, for the period

from October 7, 2010, through December 31, 2011. Dr. Buerger

found that Pavlakos had medically determinable impairments of

Bipolar II Disorder and anxiety, but she concluded that the

impairments were not severe and caused only mild functional

limitations.

After his application for benefits was denied, Pavlakos

requested a hearing that was held in April of 2013. Pavlakos had

a non-attorney representative who appeared by video for the

1Pavlakos had previously applied for benefits, but his applications were denied.

4 hearing, and a vocational expert testified by telephone at the

hearing. On April 22, 2014, the ALJ issued a decision in which

he found that Pavlakos was not disabled. The Appeals Council

denied Pavlakos’s request for review.

Discussion

In support of his motion to reverse and remand, Pavlakos

argues that the ALJ erred in finding that he has the residual

functional capacity to do full-time work because the record lacks

expert opinion on that issue and does not support that

assessment. Pavlakos also argues that the ALJ erred in finding

that he could do past relevant work as a rental store clerk when

he has never done that work. The Acting Commissioner contends

that the ALJ properly assessed Pavlakos’s residual functional

capacity, which is based on substantial evidence, and that the

error in the job description does not require reversal.

Disability, for purposes of social security benefits, is

“the inability to do any substantial gainful activity by reason

of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12

5 months.”

(a).2 The ALJ follows a five-step

sequential analysis for determining whether a claimant is

disabled.

. The claimant bears the burden

through the first four steps of proving that his impairments

preclude him from working. Freeman v. Barnhart,

(1st Cir. 2001). The Commissioner bears the burden at step

five to show that other work exists that the claimant can do.

Seavey,

.

A. Residual Functional Capacity

The ALJ’s residual functional capacity assessment determines

the most a person can do in a work setting despite his

limitations caused by impairments.

(a)(1).

A residual functional capacity assessment will be affirmed if it

is supported by substantial evidence. Irlanda Ortiz v. Sec’y of

Health & Human Servs.,

(1st Cir. 1991); Pacensa

v. Astrue,

(D. Mass. 2012).

2 TheSocial Security Administration promulgated regulations governing eligibility for disability insurance benefits at Part 404 and for supplemental security income at Part 416. Because the regulations are substantially the same, the court will cite only to the Part 404 regulations. See McDonald v. Sec’y of Health & Human Servs.,

, 1120 n.1 (1st Cir. 1986).

6 In this case, the ALJ found that Pavlakos had severe

impairments due to degenerative disc disease, bipolar disorder,

depressive disorder, and PTSD. Despite those impairments, the

ALJ found that Pavlakos had the residual functional capacity to

perform light work with some restrictions. The ALJ found that

Pavlakos could do only simple and unskilled work and could

maintain concentration for two-hour periods during an eight-hour

work day and forty-hour work week. Based on that assessment and

the vocational expert’s opinion, the ALJ found that Pavlakos

could do his past work as a rental store clerk.

Pavlakos argues that the ALJ’s residual functional capacity

assessment is not supported by substantial evidence because the

record does not include a mental functional capacity assessment

by an expert that supports the ALJ’s assessment. Without a

supporting opinion, Pavlakos contends, the ALJ’s assessment is

based on his own interpretation of raw medical data in the

record, which is not permitted. The Acting Commissioner argues

that the ALJ properly assessed Pavlakos’s residual functional

capacity based on the medical record that showed only mild

impairment.

The ALJ gave little weight to the opinions provided by Dr.

Charron and Dr. Hess because he concluded that the

7 contemporaneous treatment notes did not support the serious

functional limitations found in those opinions. As to Dr.

Buerger’s opinion, the ALJ said that he gave her opinion “some

weight” but also stated that Dr. Buerger’s finding of no severe

impairment was not consistent with the record evidence.

Therefore, it is not clear what part of Dr. Buerger’s opinion the

ALJ credited. As a result, it appears that the ALJ did not rely

on any expert opinion to support his residual functional capacity

assessment.

Ordinarily, an ALJ must have an expert’s residual functional

capacity assessment to interpret a claimant’s symptoms and

impairments in terms of functional loss and job performance.

Manso-Pizarro v. Sec’y of Health & Human Servs.,

(1st Cir. 1996); Gordils v. Sec’y of Health & Human Servs.,

(1st Cir. 1990). An expert’s opinion is necessary

because “an ALJ, as a lay person, is not qualified to interpret

raw data in a medical record.” Manso-Pizarro,

.

If, however, the record shows little impairment, “an ALJ

permissibly can render a commonsense judgment about functional

capacity even without a physician’s assessment.”

The Acting Commissioner argues that the ALJ properly made a

commonsense evaluation of Pavlakos’s functional capacity without

8 an expert’s opinion. In support, the Acting Commissioner notes

that Pavlakos’s symptoms were under “fair control” with

medication. Pavlakos highlights records that show his mood

swings, depression, grandiose thoughts, difficulty with sleep,

and many other symptoms. Given the apparent severity of

Pavlakos’s diagnoses and symptoms, this is not a record of little

impairment that can be interpreted through a lay person’s

commonsense. Therefore, in the absence of expert opinion, the

ALJ’s residual functional capacity assessment is not supported by

substantial evidence.

B. Past Work

At step four, the ALJ found, relying on the vocational

expert’s testimony, that Pavlakos could return to his past work

as a “rental store clerk.” The Acting Commissioner concedes that

the ALJ misstated Pavlakos’s past work but contends that the

mistake was a mere scrivener’s error. Because the mistake can be

addressed on remand, if necessary, the issue need not be resolved

here.

9 Conclusion

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

and remand (document no. 7) is granted. The Acting

Commissioner’s motion to affirm (document no. 8) is denied.

The case is remanded pursuant to sentence four of § 405(g).

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

March 12, 2015

cc: Ruth Dorothea Heintz, Esq. Michael T. McCormack, Esq.

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