UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cory Bodette

v. Case No. 15-cv-282-JL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Cory Bodette moves for an

order reversing the Acting Commissioner’s decision to deny his

application for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under Title

XVI,

. The Acting Commissioner, in turn, moves

for an order affirming her decision. For the reasons that

follow, this matter is remanded to the Acting Commissioner for

further proceedings consistent with this order.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing

§ 405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . .

benefits unless ‘the [Acting Commissioner] has committed a legal

or factual error in evaluating a particular claim.’” Manso-

Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement1 is part of the court’s record and will be

summarized here, rather than repeated in full. Moreover, the

1 Document no. 12.

3 following summary focusses on those facts relevant to the

disposition of the motions before the court.

Bodette last worked as a lot associate at Home Depot.

Before that, he worked as a cashier at Walmart. He left his job

at Home Depot on June 13, 2012, which is the date on which he

claims to have become disabled. Two days before he stopped

working, Bodette went to the doctor, complaining of syncope.2 He

continues to have syncopal episodes, but doctors have been

unable to determine the root cause. About two weeks after he

stopped working, Bodette applied for SSI and DIB benefits,

claiming that he was disabled by syncope, migraine headaches,

and depression.

On September 12, 2012, Bodette was seen by a psychologist,

Dr. Cheryl Bildner, who performed a consultative examination.3

In the Mental Health Evaluation Report that resulted from her

examination, Dr. Bildner gave Bodette three relevant diagnoses:

2 Syncope is a “[l]oss of consciousness and postural tone caused by diminished cerebral blood flow.” Stedman’s Medical Dictionary 1887 (28th ed. 2006).

3 “A consultative examination is a physical or mental examination or test purchased for [a claimant] at [the Social Security Administration’s] request.”

& 416.919.

4 (1) severe recurrent major depressive disorder with psychotic

features; (2) chronic posttraumatic stress disorder; and (3)

attention deficit hyperactivity disorder, by history. Under the

heading “Content of Thought,” Dr. Bildner noted:

Claimant reported suicidal thoughts. He reported having a firearm at home and thoughts of killing himself. He denied any intent and reported that he “doesn’t want anyone to have to clean up his mess.” He contracted for safety and contracted to bring himself to the emergency room if he experienced suicidal thoughts. He denied any plans to harm others. He reported hearing voices and stated that the voices are critical in nature. He also reported that [the voices tell] him to hurt himself but he “knows they are not real”. He reported experiencing flashbacks and nightmares of past abuse. He denied experiencing obsessions or compulsions. He reported that he experiences hypervigilant tendencies and experiences high anxiety including panic attacks and racing thoughts. He checks to make sure doors are locked and windows are shut. He was focused on his psychological symptoms and his physical health.

Tr. 551-52.

With respect to Bodette’s level of functioning at the time

she examined him, Dr. Bildner offered the following opinions:

Claimant is predominantly able to complete activities of daily living.

. . . .

Claimant is able to interact appropriately and communicate effectively with others. Claimant maintained consistent employment for over four years.

. . . .

5 Claimant is able to understand and recall instructions. No gross deficits were observed in cognitive functioning. He is able to recall employment procedures as evidenced by his ability to sustain long term employment.

. . . .

Claimant is able to maintain attention and concentration when appropriately motivated. Currently, he is enrolled in two online computer courses which he is engaged in. On the job, he has a history of maintaining consistent attention and concentration. Concentration and task completion will be interrupted during a syncope episode.

. . . .

Claimant is currently unable to manage stress associated with a place of employment. He is preoccupied with physical health and feels “unsafe” to go to work. He has no motivation to report to work. He reported that he is currently employed by Home Depot. He is not motivated to maintain a schedule. He is able to interact appropriately with supervisors and coworkers. He is able to make simple decisions.

Tr. 553-54.

On September 13, 2012, a state-agency psychological

consultant, Dr. William Jamieson, conducted a Psychiatric Review

Technique (“PRT”)4 assessment based upon the record. In his

4 The Social Security Administration uses the “psychiatric review technique” to evaluate the severity of mental impairments. See

.1520a & 416.920a (describing the PRT).

6 assessment, Dr. Jamieson considered two mental impairments,

affective disorders and anxiety-related disorders. In his

consideration of the so-called paragraph B criteria of the

listings for those disorders, Dr. Jamieson determined that

Bodette had no restrictions on his activities of daily living,

no difficulties in maintaining social functioning, and mild

difficulties in maintaining concentration, persistence, or pace.

He also determined that Bodette had not had any episodes of

decompensation of extended duration. Dr. Jamieson added this

explanation to his assessment:

Source[s] [of evidence] [are] Cheryl Bildner, Ph.D. (Consultative examiner), White Mountain Community Health, [claimant’s] function report and third party function report. Most weight is given to Dr. Bildner with the exception of [claimant’s] ability to handle stress in the work environment. She opines that he has no motivation to report to work. This does not appear to be related to any psychological impairment and therefore, this opinion is given little weight.

Tr. 79-80, 93-94.

In late September of 2012, Bodette went to the White

Mountain Community Health Center expressing suicidal ideation

and complaining of visual hallucinations. He was transported to

the emergency room and from there, he was involuntarily

committed to New Hampshire Hospital (“NHH”). At NHH, he was

diagnosed with: mood disorder, not otherwise specified; anxiety

7 disorder, not otherwise specified; rule out generalized anxiety

disorder;5 rule out posttraumatic stress disorder; and psychotic

disorder, not otherwise specified. NHH’s characterization of

the reason for Bodette’s hospitalization includes this:

He was reporting two weeks of command and derogatory hallucinations to harm himself and others. He was having difficulty sleeping due to these voices being so bothersome. He began to feel suicidal as a result of insomnia and auditory hallucination.

Tr. 556. Bodette was released from NHH after a three-day stay.

In December of 2012, Bodette was awarded benefits from the

State of New Hampshire’s Aid to the Permanently and Totally

Disabled (“APTD”) program. That award resulted from a finding

by the New Hampshire Disability Determination Unit (“DDU”), that

he suffered from a disabling psychotic disorder. The records

generated by the application process include a Psychiatric

Review Template (“PRTemp”) form completed by a physician.6 The

5 “‘Rule-out’ in a medical record means that the disorder is suspected but not confirmed — i.e., there is evidence that the criteria for a diagnosis may be met, but more information is needed in order to rule it out.” Byes v. Astrue,

, 916 n.3 (8th Cir. 2012) (citing United States v. Grape,

, 593 n.2 (3d Cir. 2008)).

6 While that physician signed and/or initialed several pieces of paperwork, his signature is illegible and his name does not appear to be printed on any of the forms included in the record.

8 DDU’s Psychiatric Review Template mirrors the Psychiatric Review

Technique employed by the SSA, and refers directly to the

listings of mental impairments set out in the Social Security

regulations.

The author of PRTemp form considered one mental impairment,

psychotic disorders. In his or her consideration of the

paragraph B criteria of the listing for that disorder, Listing

12.03, the author determined that Bodette had moderate

restrictions on his activities of daily living, moderate

difficulties in maintaining social functioning, and extreme

difficulties in maintaining concentration, persistence, or pace.

The author of the PRTemp form also determined that Bodette had

had one or two episodes of decompensation, each of extended

duration. Based upon the finding that Bodette had extreme

difficulties in maintaining concentration, persistence, or pace,

the author of the PRTemp form determined that Bodette’s

psychotic disorder met Listing 12.03.

After conducting a hearing on Bodette’s claim, the ALJ

issued a decision that includes the following relevant findings

of fact and conclusions of law:

3. The claimant has the following severe impairment: syncope of unknown unknown etiology (20 CFR 404.1520(c) and 416.920(c)).

9 . . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . . .

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he is to avoid hazards such as unprotected heights and machinery with moving parts.

. . . .

6. The claimant is capable of performing past relevant work as a Cashier. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565 and 416.965).

Tr. 22, 24, 25, 29.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). To be eligible

10 for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether the ALJ correctly determined that Bodette was

not under a disability from June 13, 2012, through December 10,

2013.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See

(DIB) & 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert,

(1987). He

11 must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Bodette’s Claims

Bodette claims that the ALJ erred by: (1) failing to

properly consider his obesity;7 (2) failing to properly consider

his mental impairments when determining his RFC; and (3) using

lay knowledge to determine his RFC. Bodette’s second argument

is persuasive, and dispositive; he is entitled to a remand

because the ALJ failed to evaluate the medical opinion

underlying the DDU’s decision to award him APTD benefits.

The point of decision in this case lies at the confluence

7 At his hearing, Bodette testified that he was six feet tall and weighed 418 pounds.

12 of two separate Social Security regulations and an error by the

ALJ in characterizing the record before him.

The first of the two regulations applicable to Bodette’s

claim provides:

A decision by any . . . other governmental agency about whether [a claimant is] disabled . . . is based on its rules and is not our decision about whether [the claimant] is disabled . . . . We must make a disability . . . determination based on social security law. Therefore, a determination made by another agency that [a claimant is] disabled . . . is not binding on us.

& 416.904.8 The second pertinent

regulation provides that “[r]egardless of its source, we [the

Social Security Administration (“SSA”) and, by extension, an

ALJ] will evaluate every medical opinion we receive.”

(c) & 416.927(c).

Turning to the interplay between those two rules, the order

in Chapdelaine v. Colvin, No. 14-cv-30081-KAR,

(D. Mass. Mar. 23, 2015), is instructive. In that case, the

magistrate judge was confronted with a decision in which an ALJ:

8 While decisions of other governmental agencies are not binding on the Social Security Administration, “an administrative law judge must explain the consideration given to such a determination.” Boyer v. Colvin, No. 1:15-cv-28-JHR,

, at *2 (D. Me. Oct. 15, 2015) (citing Social Security Ruling 06-03p,

(S.S.A. Aug. 9, 2006)).

13 (1) “stated . . . that he did ‘not accept the [U.S. Department

of Veterans Affairs] decision of disabled, as such program does

not have the same criteria as [those] of the Social Security

Administration,’” id. *2; but (2) failed to fully consider the

evidence underlying that decision. In his order remanding the

matter, the magistrate judge explained:

[I]t is unclear from the decision what weight, if any, [the ALJ] gave to Ms. Britton’s opinion or to the opinions of other medical sources from the [Veterans Affairs Medical Center]. Thus, while “merely ignoring an administrative conclusion [may not be] error per se,” in this case, “it is more troubling [where] relevant evidence of disability [that] form[ed] the basis of the [VA] finding is in the record and [was seemingly] ignored.” Dube v. Astrue,

, 37 n.16 (D.N.H. 2011) (citing Bickford v. Barnhart,

(D. Me. 2002) (error to ignore medical evidence in VA records)).

Id.; cf. Johnson v. Chater,

,

(10th Cir. 1996) (unpublished table decision) (stating that even

though a Dr. Tate “evaluated [claimant] for a worker’s

compensation claim . . . [t]he ALJ could rely on Dr. Tate’s

evaluation notwithstanding

, which provides

that findings of other agencies are not binding on the

[Commissioner]”).9

9 While it is not directly relevant to this case, the court also notes that in Pelkey v. Barnhart, the court of appeals held that an ALJ’s failure to mention the VA’s final conclusion on a

14 In his decision on Bodette’s claim, the ALJ wrote: “I give

exhibit 10F little weight.” Tr. 28. The problem is that the

balance of the ALJ’s discussion makes it clear that he regarded

Exhibit 10F as being nothing more than the announcement of a

decision, made by a registered nurse, on Bodette’s application

for APTD benefits. However, Exhibit 10F also includes a

Psychiatric Review Template form signed by a physician. That

form, in turn, memorializes a medical opinion on the severity of

Bodette’s psychotic disorder that includes specific findings on

the paragraph B criteria for Listing 12.03.10 Yet, while the ALJ

discounted the DDU’s decision to award Bodette APTD benefits, he

said nothing at all about the medical opinion underlying that

decision. That was an error. See Chapdelaine,

,

at *2.

disability claim did not entitle the claimant to a remand because the ALJ “fully considered the evidence underlying the VA’s final conclusion,”

(8th Cir. 2006). If nothing else, Pelkey underscores the importance of evaluating the medical opinions underlying disability determinations by other governmental agencies.

10Indeed, the author of the PRTemp form determined that Bodette had extreme difficulties in maintaining concentration, persistence, or pace. According to the Social Security regulations, such difficulties represent “a degree of limitation that is incompatible with the ability to do any gainful activity.”

.1520a(c)(4) & 416.920a(c)(4).

15 In so ruling, the court is mindful that in Johnson v.

Colvin, Judge Hornby adopted a report and recommendation in

which the magistrate judge determined that the ALJ had committed

at most a harmless error by failing to address a physician’s

opinion that supported an award of disability benefits from the

VA, see No. 1:13-cv-406-DBH,

, at *3 (D. Me. Oct.

21, 2014). But in Johnson, the opinion at issue was a bare

conclusion that the claimant could not work, “a matter that is

reserved to the commissioner.”

Here, by contrast, the

opinion the ALJ ignored was expressed in precisely the format

described by the SSA in

.1520a(c) and

416.920(c). Thus, Johnson does not counsel in favor of

affirming the ALJ in this case.

Having identified an error by the ALJ that requires a

remand, the court need say no more, but there is one final point

that may bear mentioning. The thrust of

and 416.904 is that the SSA is not bound by disability

determinations made by agencies that use rules that are

different from those employed by the SSA. That concern was

echoed by the ALJ in Chapdelaine, who pointed out that the

Veterans Affairs disability “program does not have the same

criteria as [those] of the Social Security Administration,” 2015

, at *2. Here, however, the opinion the ALJ ignored

was expressed on a form that uses the exact same format as the

opinion by Dr. Jamieson to which the ALJ gave great weight.

In light of the similarities between the SSA’s Psychiatric

Review Technique (employed by Dr. Jamieson) and the New

Hampshire DDU’s Psychiatric Review Template (completed by the

physician with the illegible signature) it would seem difficult

to characterize the SSA disability program and the APTD

disability program as having different criteria, or as being, as

the ALJ said in his decision, “distinct . . . separate and

unrelated,” Tr. 28. Rather, at least with regard to determining

the severity of mental impairments, it would appear that a

determination by the New Hampshire DDU is based on rules that

are all but identical to those used by the SSA, which would seem

to obviate the concern that is addressed by

and 416.904. That said, whether or not the congruence

between the SSA’s PRT and the DDU’s PRTemp require an ALJ to

give substantial weight to determinations such as the one made

by the New Hampshire DDU in this case is a question for another

day.

The bottom line is this. The ALJ did not necessarily err

in his determination of the amount of weight to give the DDU’s

17 decision to award Bodette APTD benefits. The error that

requires a remand is the ALJ’s failure to evaluate, or even

acknowledge, the opinion of the physician who completed the

Psychiatric Review Template form on which the decision to award

APTD benefits was based.

IV. Conclusion

For the reasons detailed above, the Acting Commissioner’s

motion for an order affirming her decision11 is denied, and

Bodette’s motion to reverse that decision12 is granted to the

extent that this matter is remanded to the Acting Commissioner

for further proceedings, pursuant to sentence four of

(g). The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

_________________________ _ Joseph Laplante United States District Judge

Dated: August 9, 2016

cc: Laurie Smith Young, Esq. Robert J. Rabuck, AUSA

11 Document no. 9. 12 Document no. 11.

18