Opinion
Civil No. 02-259-M, Opinion No. 2003 DNH ___.
July 16, 2003.
ORDER
Pursuant to 42 U.S.C. § 405(g), claimant, Erica L. Palermo, moves to reverse the Commissioner's decision denying her application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423. The Commissioner, in turn, moves for an order affirming her decision. For the reasons given below, [the decision of the Administrative Law Judge ("ALJ") is affirmed — the matter is remanded to the Administrative Law Judge ("ALJ") for further proceedings consistent with this opinion].
Plaintiff's counsel is hereby directed to LR 5.1(a), which requires all filings to be double spaced.
Standard of Review
The statute governing the 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 conclusive42 U.S.C. § 405(g) (setting out the standard of review for DIB decisions). However, the court "must uphold a denial of social security disability benefits unless `the [Commissioner] has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the 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, 764 F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (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, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Finally, when determining whether a decision of the Commissioner is supported by substantial evidence, the court must "review the evidence in the record as a whole." Irlanda Ortiz v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriquez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
"It is the responsibility of the [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 [Commissioner], not the courts." Irlanda Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court "must uphold the [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, 842 F.2d 529, 535 (1st Cir. 1988).
Background
The parties have submitted a Joint Statement of Material Facts (document no. 12), which is part of the court's record. The facts included in that statement are not recited here, en masse, but will be referred to as necessary.Claimant's insured status expired on September 30, 1994. On April 27, 2000, she filed an application for Social Security disability insurance benefits, claiming that she had become disabled, as a result of bipolar disorder, on September 28, 1990. During its consideration of claimant's application, a Psychiatric Review Technique form was completed. (Administrative Transcript ("Tr.) at 223-231.) According to the evaluator who completed the form, claimant suffered from bipolar syndrome, an affective disorder. However, the evaluator determined that there was insufficient evidence to evaluate the functional limitations that would have defined the severity of claimant's impairment.
"At the initial and reconsideration levels of the administrative review process, [the Social Security Administration ("SSA")] will complete a standard document to record how [it] applied the [special] technique [for evaluating the severity of mental impairments]. At the administrative law judge hearing . . . level [the ALJ] will document application of the technique in the decision." 20 C.F.R. § 404.1520a(e). Furthermore, "[a]t the administrative law judge hearing . . . level, the written decision issued by the administrative law judge . . . must incorporate the pertinent findings and conclusions based on the technique." 20 C.F.R. § 404.1520a(e) (2).
On September 11, 2001, a hearing was held before an ALJ. Claimant and a vocational expert testified. At the hearing, the ALJ posed four hypothetical questions, which the vocational expert answered as follows:
Q . . . For the first question, there are no documented physical impairments that would affect the ability to perform work activity as far as sitting, standing, walking, lifting, carrying. Do however assume limitations such that the individual could not work with the public more than occasionally. Could occasionally interact with co-workers. With that level of limitation on social functioning, could any of the past jobs be done?
A No, Your Honor. None of them in my opinion
Q What type of unskilled lower level SVP jobs can you identify with that type of social functioning, if any?
A Only occasional interaction with the public and occasional interaction with co-workers?
Q Yes, sir.
A The occasional interaction with co-workers, Your Honor, is quite a limiting factor. If we define occasional according to the Department of Labor standards of up to two and a 1/2 hours per day, there are very few jobs in my opinion that wouldn't involve interaction with co-workers at least two and a 1/2 hours a day. As a matter of fact, the Department of Labor identifies only three occupations, which involve working alone out of 12,700 some odd occupations. So, if that's the definition that we're using for occasional, I would in the unskilled base.
Q Okay. Let me ask you a second question. Restricting contact with the public to occasional, what jobs if any can you identify with the same hypothetical as in no physical restrictions?
A And that's the only social interaction restriction?
Q Correct.
A Okay. I would say that the officer helper positions, that the cleaning jobs, hand packer, packaging, assembly work.
Q What are the numbers nationally [and] in the state economy for those four jobs?
. . .
A . . . In New Hampshire [for the office helper job], I'd estimate 500 and nationally 100,000. For the cleaning jobs, one million nationally and I would say 10,000 in New Hampshire. For the hand packer and packager, nationally 500,000 and in New Hampshire 5,000. And assembly, one million nationally and 5,000 in New Hampshire.
Q Okay. The cleaning job that would require an occasionally interact with co-workers, they could not perform a cleaning job?
A That probably could be performed, Your Honor. an opinion. But, they could probably be able to perform that job if they only had to interact with co-workers up to two hours per day, two and a 1/2 hours per day. There'd be a reduction in the number because some of these cleaning jobs are performed as a group. People to into homes together or with another person in terms of the home cleaning. So, I jobs.
Q How far would you reduce it, 10, 20, 30, 50?
A I would reduce the job base that I gave by 50%.
Q Okay. One more question, if we were to restrict an individual from performing production work or piece work or work that required them to making a strict quota both a certain number of — level of production per minute or per hour. How would that affect the four jobs you identified in the second hypothetical, officer helper, cleaning, hand packer, and assembly?
A Well, hand packing and assembly would be eliminated because there would be clear production guidelines there. . . .
. . .
Q Let me ask you a final question. The fourth question is, you had a chance to take into account the testimony and observe the demeanor of the witness. If we assume the limitations we've heard accurately reflect Ms. Palermo's ability to function in the workplace, in your opinion, could any of the jobs you've described today be performed?
A No, Your Honor. I find that the expressed limitations would be of such a number and of such a degree that would preclude competitive employment. Particularly in regard to social interaction, concentration, and persistence and productivity, work productivity.
(Tr. at 56-59.) Under examination by claimant's attorney, the vocational expert clarified his testimony, explaining that there "would be a number of cleaning jobs that could be performed within that restriction of limiting interaction with co-workers to two and 1/2 hours per day." (Tr. at 60.) He went on to state that his opinion was based upon nonprofessional observation of various cleaners.
In the body of his decision, dated November 29, 2001, the ALJ discussed the medical evidence in the record at some length and in some detail, but he did not mention the Psychiatric Review Technique form and nor did he frame his analysis in terms of the technique for evaluating mental impairments set out in 20 C.F.R. § 404.1520a. The ALJ also made the following observations:
The claimant's statements concerning her impairment and its impact on her ability to work are not entirely credible in light of the claimant's own description of her activities and life style, the medical history, the claimant's assertions concerning her ability to work and the reports of the treating and examining practitioners. The evidence of record does not confirm the level of limitations that the claimant alleges. . . .
. . .
The undersigned finds that on the date her insured status expired, the claimant had significant but not disabling non-exertional limitations which interfered with her ability to work. The evidence supports a finding that she was not able to interact with the general public more than occasionally and she would be restricted from stressful production pace work.
. . .
. . . The vocational expert testified that assuming Ms. Palermo's specific work restrictions, she was capable of making a vocational adjustment to work as an office helper, there are 500 of these jobs in New Hampshire and 100,000 nationally and a cleaner, there are 10,000 of these jobs in New Hampshire and 1,000,000 nationally.
(Tr. at 23.) The ALJ's decision concludes with the following formal findings:
3. The medical evidence establishes that on the date her insured status expired the claimant had bipolar disorder, an impairment which is severe but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
. . .
5. On September 30, 1994, the date her insured status expired, the claimant lacked the residual functional capacity to interact with the general public or co-workers more than occasionally and was unable to perform stressful production work.
. . .
7. On September 30, 1994, the date her insured status expired, the claimant's non-exertional limitations significantly narrowed the range of work she was then capable of performing.
. . .
11. Considering the claimant's age, educational background, and residual functional capacity on the date her insured status expired, she was able to make a successful vocational adjustment to work, which exists, in significant numbers in the national economy. Such work includes employment as office helper and cleaner.
12. The claimant was not under a disability, as defined in the Social Security Act, at any time through September 30, 1994, the date her insured status expired.
(Tr. at 24-25.)
Discussion
While claimant's brief is not as clear as it might be, she appears to argue that ALJ's decision should be reversed, and the case remanded, because the ALJ: (1) determined, incorrectly, that her condition did not meet or equal any listed impairment; (2) found, without substantial evidence, that claimant had the residual functional capacity to perform jobs that involved occasional interaction (up to two and one half hours per day) with co-workers; (3) determined, incorrectly, that claimant was capable of performing the jobs of office helper and cleaner, when both involved production quotas; and (4) failed to consider claimant's agoraphobia, which limited the availability of the jobs mentioned by the vocational expert to less than significant numbers. The Commissioner disagrees, categorically.
I. Relevant Law
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. 42 U.S.C. § 423(a)(1)(A)-(D). The only question in this case is whether claimant was under a disability at any time before September 30, 1994, the date on which her insured status expired.
For the purpose of determining eligibility for disability insurance benefits,
[t]he term "disability" means . . . inability to engage in 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 months.42 U.S.C. § 423(d)(1)(A). Moreover,
[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.42 U.S.C. § 423(d)(2)(A).
In order to determine whether a claimant is disabled for the purpose of determining eligibility for either disability insurance benefits, an ALJ is required to employ a five-step process. See 20 U.S.C. § 404.1520.
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. Barnhard, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20 C.F.R. § 416.920, which outlines the same five-step process as the one prescribed in 20 C.F.R. § 1520).
The claimant bears the burden of proving that he/she is disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He/She must do so by a preponderance of the evidence. See Mandziej v. Chater, 944 F. Supp. 121, 129 (N.H. 1996) (citingPaone v. Schweiker, 530 F. Supp. 808, 810-11) (Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec'y of Health Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). If the [claimant's] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations. 20 C.F.R. § 416.969; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in 20 C.F.R. § 416.969; Heckler v. Campbell, 461 U.S. 458 (1983). "The Grid," as it is known, consists of a matrix of the [claimant's] exertional capacity, age, education, and work experience. If the facts of the [claimant's] situation fit within the Grid's categories, the Grid "directs a conclusion as to whether the individual is or is not disabled." 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in 20 C.F.R. § 416.969. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust, id. § 200(e)) that restrict his [or her] ability to perform jobs he [or she] would otherwise be capable of performing, then the Grid is only a "framework to guide [the] decision," 20 C.F.R. § 416.969a(d) (2001). See also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).Seavey, 276 F.3d at 5 (parallel citations omitted). Finally,
In assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) plaintiff's subjective claims of pain and disability as supported by the testimony of the plaintiff or other witness; and (3) the plaintiff's educational background, age, and work experience.Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec'y of HHS, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec'y of HHS, 690 F.2d 5, 6 (1st Cir. 1982)).
II. Step Three
Claimant argues that the ALJ's decision should be reversed, and she should be awarded benefits, because the ALJ incorrectly determined that her condition did not meet or equal a listed impairment. More specifically, claimant argues that, from September 28, 1990, through September 30, 1994, her condition met the requirements set out in 20 C.F.R. § 404, subpt. P, App. 1, Pt. A, secs. 12.04(A)(1) (B).
There is a problem with the ALJ's step-three determination, but not one that merits an award of benefits. The problem is that the ALJ did not refer to the Psychiatric Review Technique form, and did not frame his step-three analysis in terms of the technique set out therein. See 20 C.F.R. § 404.1520a(1) ("[a]t the administrative law judge hearing . . . level, we will document application of the technique in the decision"). Accordingly, the case is remanded to the ALJ for further consideration.
It is not necessary to reach the parties' arguments as to the ALJ's step-five analysis in order to resolve this case, given that the case is being remanded on step-three grounds. However, given the possibility that the ALJ could once again reach step five, and given that the parties have extensively engaged on that issue, the court will go ahead and decide whether the ALJ correctly determined that claimant had the residual functional capacity to perform work available in significant numbers in the national economy.
III. Step Five