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. 2009 DNH 183P
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 42
U.S.C. § 405(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 id. 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, 955 F.2d 765, 769 (1st Cir. 1991)
2 (quoting 42 U.S.C. § 405(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, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
see also Currier v. Sec'y of HHS, 612 F.2d 594, 597 (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, 647 F.2d 218, 222 (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 id.
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, 76 F.3d 15, 16 (1st Cir. 1996) (citing Sullivan v.
Hudson, 490 U.S. 877, 885 (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 42 U.S.C. § 405(g); see also Martin v. Astrue, No.
C .A . 07-388A, 2008 WL 5111918, *2-3 (D.R.I. Dec. 2, 2008) (citing
3 authority about when to remand and when to reverse); Evangelista
v. Sec'y HHS, 826 F.2d 136, 139 (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, 424 U.S. 319, 336 (1976)
(explaining that a claimant has a "continuing burden" to
demonstrate his disability); see also 42 U.S.C. § 423(f)
(governing termination of benefits); 20 C.F.R. §§ 404.1589 &
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 42 U.S.C.
§ 423(f); see also 20 C.F.R. § 404.1594; Rice v. Chafer, 86 F.3d
1, 2 (1st Cir. 1996); Shepherd v. Apfel, 184 F.3d 1196, 1199
(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 . . . .
42 U.S.C. § 423(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, 86 F.3d at 2 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,
2005 WL 767171, *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 20 C.F.R. § 404.1594(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 20 C.F.R. §§ 404.1594(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, 86 F.3d at 2 (guoting 20 C.F.R. § 404.1594(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 id. §§ 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 20 C.F.R. § 404.1594(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, 86 F.3d at 2-
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 id. ("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,"
id., 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 20 C.F.R. §§ 404.1508 (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 id., 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.
Id. Both initially and on reconsideration, a "special technigue"
must be followed to evaluate the mental disability, see id. §
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
16 F. Supp. 2d 20, 23 (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 id. 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 20 C.F.R. § 404.1527(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 id. § 404.1527(d);
see also Rose v. Shalala, 34 F.3d 13, 18 (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 id.
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 20 C.F.R. § 404.1527(d) (2)-(6) (explaining how to
weigh opinions of treating physicians that are not inconsistent
with other substantial evidence); see also Nguyen v. Chater, 172
F.3d 31, 35 (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, 848 F.2d 271, 276 (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, 172 F.3d at 35
(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 20 C.F.R. § 1563(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. Id.
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 id.
§ 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 (20 CFR § 1563)," 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. Id.
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 id. & § 404.1594(b)(6); see also Avery v.
Sec'y of HHS, 797 F.2d 19, 28-29 (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, 34 F.3d 13, 19 (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, 76 F.3d 15, 17 (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, 34 F.3d at 19 (instructing that reliance on the Grid is
not dispositive where non-exertional limitations are present);
see also Nguyen, 172 F.3d at 36 (reversing in part for reliance
on the Grid which does not factor in pain); Arocho v. Sec'y HHS,
670 F.2d 374, 375 (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, 2000 WL 1745142, *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, 465 F. Supp. 2d 498, 504-05 (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, 172 F.3d at 35. I recommend this case be
remanded for further consideration consistent with the analysis
set forth herein. See 42 U.S.C. § 405(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, 979 F.2d 11, 13-14 (1st Cir. 1992);
United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) .
James R. Muirhead United States Magistrate Judge
Date: November 30, 2009
24 cc: Jonathan P. Baird, Esq. T. David Plourde, Esq.