George Barrett v. SSA CV-01-371-B 03/28/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
George Barrett
v. Civil No. 01-371-B Opinion No. 2003 DNH 055 Jo Anne B. Barnhart
MEMORANDUM AND ORDER
On April 3, 2000, George Barrett filed an application with
the Social Security Administration ("SSA") for Title II
disability insurance benefits ("DIB"). The SSA initially denied
his application. Barrett elected to bypass reconsideration of
this initial decision and requested a hearing. Administrative
law judge ("ALJ"), Frederick Harap, held a hearing, and on
February 20, 2001, determined that Barrett was not disabled.
Barrett appealed, but on July 27, 2001, the Appeals Council
denied his request for review.
Barrett brings this action pursuant to 42 U.S.C. § 405(g)
(1991 & Supp. 2002), seeking review of the denial of his application for DIB. Barrett argues that: (1) the ALJ failed to
follow procedural requirements when evaluating Barrett's mental
impairment; (2) the ALJ's decision regarding Barrett's RFC is
unsupported by substantial evidence; and (3) the ALJ's finding
that the claimant lacked credibility is unsupported by
substantial evidence.
I. BACKGROUND
A. Barrett's Education and Work History
Barrett was 58 years old when he filed his application for
DIB on April 3, 2000. He has an eighth grade education, but is
functionally illiterate. Barrett's work experience includes
assembly work in the shoemaking industry, general labor, and
janitorial work. He left his last position as a janitor in 1989,
when he contends he became disabled and could no longer work.1
Since 1989, Barrett has worked as much as twenty hours per week
as a packer and assembler in a sheltered work setting. This work
does not constitute substantial gainful activity. See 20 C.F.R.
404.1571 et se^. (2002) .
1 At the ALJ hearing, Barrett requested that his onset date of disability be changed to December 31, 1994.
- 2 - B. Medical Evidence
Barrett's medical history begins in 1962, when he was
transferred from jail to the New Hampshire State Hospital on a
"regular order of commitment." Record at 83. State Hospital
records indicate that Barrett's I.Q. score was 83, which
classified him as mildly mentally deficient. Eventually, Barrett
was granted "full ground privileges" at the State Hospital,
secured employment at a local mill, and was discharged on June 9,
1967. There is nothing in the record regarding Barrett's medical
history from 1967 to 1999.
On July 6, 1999, Barrett sought medical treatment at
Catholic Medical Center for nervousness and a hissing sound in
his right ear. His ear was occluded with ear wax and was
irrigated. Although the primary treatment related to his ear,
Barrett was proscribed Ativan for his nervousness.2
On July 20, 1999, Barrett began treatment at the Manchester
Community Health Center. Again, his primary complaint was
hissing in his ear, but he also reported problems with anxiety.
2 Ativan is an anti-anxiety agent. Physician's Desk Reference at 3348 (53rd ed. 2001) .
- 3 - Barrett was continued on anti-anxiety medication. However, on
his second visit to the Center, Dr. Gavin Muir noted that Barrett
lacked an underlying diagnosis regarding his anxiety. He
referred Barrett to Manchester Mental Health. Barrett was
examined by Dr. Larry Politz at Manchester Mental Health. Dr.
Politz assessed him as having "some sort of underlying anxiety
disorder." Record at 133. Dr. Muir continued treating Barrett
with Ativan, and noted that if he developed further problems,
long term care at the Center would be appropriate.
Muir again referred Barrett to Manchester Mental Health, and
on May 1, 2000, a report regarding Barrett's condition was
completed by Dr. Daniel Potenza and Debra Grages, R.N. The
report indicated that Barrett did not suffer from any overt
psychosis, but that he displayed below normal to normal
intelligence. Barrett reported that people made him anxious and
that his depression interfered with his ability to work. Barrett
indicated that these symptoms had worsened over time. However,
Barrett also stated that he had good relationships with his wife
and children, had lots of friends, and generally got along well
with others. The report ruled out anxiety disorder as a cause of
Barrett's reported symptoms of anxiety and depression.
- 4 - The report also noted that although Barrett was "trying to
make a case around his anxiety and depression that would disable
him for Social Security Benefits," the report ultimately ruled
out malingering. Record at 154. In conclusion, the report
diagnosed Barrett as suffering from "Personality Disorder with
Antisocial Traits." Record at 157. It also stated that it was
"unclear" to what extent Barrett's functioning was impaired in
regard to his reported symptoms of anxiety and depression.
Record at 158. These self-reported symptoms, the report said,
"will need careful evaluation." Id.
Upon the reguest of his attorney, Barrett underwent a
psychological examination by Dr. Brian Rines. Dr. Rines's
report, dated December 12, 2000, concluded that Barrett had the
mental functioning of a twelve year old and was functionally
illiterate. Dr. Rines suggested that Barrett would find it
nearly impossible to follow simple verbal instructions, think
abstractly, or shift cognitive routines. Dr. Rines opined that
Barrett would most likely put off or threaten others with his
actions, given his lack of judgment and insight. In conclusion.
Dr. Rines diagnosed Barrett as suffering from anxiety disorder
with social phobia, personality change associated with his
- 5 - youthful head injury, mixed personality disorder with
narcissistic, histrionic, and schizotypal features. Record at
166. According to Dr. Rines, Barrett was incapable of
substantial gainful activity beyond that of sheltered workshops.
C. PRTF and RFC Assessment By Disability Determination Services
On April 20, 2000, Dr. Craig Stenslie of the Disability
Determination Services ("DDS") completed a psychiatric review
technigue form ("PRTF") for Barrett pursuant to 20 C.F.R. § 1520a
(2002). Dr. Stenslie reviewed Dr. Muir's clinical notes and
concluded that there was "insufficient [medical evidence] of any
determinable impairment - physical or mental." Record at 136,
137. This report was generated before Barrett was evaluated and
diagnosed with personality disorder by both Manchester Mental
Health and Dr. Rines.
On April 27, 2000, SSA medical consultant Joan Turnell
completed a residual functional capacity assessment ("RFC") for
Barrett. The RFC stated that no primary diagnosis had been
established and that "there is insufficient medical evidence of
any impairment which would have prevented full-time work activity
by claimant." Record at 152. Again, this report was generated
before Barrett's diagnosis from Manchester Mental Health and Dr.
- 6 - Rines .
D. ALJ's Decision
The ALJ applied the five-step sequential evaluation process
under which disability applications are reviewed. See 20 C.F.R.
§ 404.1520 (2002). The ALJ foundthat Barrett carried his burden
sufficiently at each of the firstthree steps in the process. At
step four, however, the ALJ foundthat Barrett was not disabled
because he retained the residual functioning capacity to return
to the type of work he had performed in the past.
Specifically, the ALJ found that Barrett had "borderline
intellectual functioning and anxiety disorder, impairments which
are severe but which do not meet or equal the criteria of any of
the impairments listed in [the regulations]." Record at 18. The
ALJ noted that "[n]o treating or examining physician has
mentioned findings equivalent in severity to the criteria of any
listed impairment." Record at 15. Accordingly, the ALJ did not
complete a PRTF. The ALJ made no mention of Dr. Potenza's or Dr.
Rine's diagnosis of personality disorder. The ALJ also
discredited Barrett's subjective reports of anxiety and
depression and their effect upon his ability to work. He found
these self-reports "not entirely credible" in light of Barrett's
- 7 - description of his activities and lifestyle, and Dr. Potenza's
report, which indicated that Barrett was manipulative.
The ALJ found that Barrett's "borderline intellectual
functioning" did not prevent him from maintaining a thirty-year
marriage and fostering good relationships with his children and
grandchildren. Record at 17. Furthermore, the ALJ found that
Barrett's work history indicated an ability to perform simple
labor jobs and that there was "no indication in the file of a
worsening of his condition which would preclude him from
returning to any of his past work." Id. Because Barrett's
mental deficiencies did not hinder his ability to carry out past
work activities, the ALJ concluded that Barrett was able to
return to the type of work he had performed in the past on the
date his insured status expired.
II. STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant's application for benefits and upon a timely reguest by
the claimant, I am authorized to review the pleadings submitted
by the parties and the transcript of the administrative record
and enter a judgment affirming, modifying, or reversing the Commissioner's decision. See 42 U.S.C. § 405(g). The court's
review is limited in scope, however, as the Commissioner's
factual findings are conclusive only if they are supported by
substantial evidence. See id.; Irlanda Ortiz v. Sec'v of Health
& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The
Commissioner is responsible for settling credibility issues,
drawing inferences from the record evidence, and resolving
conflicting evidence. See Irlanda Ortiz, 955 F.2d at 769;
Frustaglia v. Sec'v of Health & Human Servs., 829 F.2d 192, 195
(1st Cir. 1987); see also Tsarelka v. Sec'v of Health & Human
Servs., 842 F.2d 529, 535 (1st Cir. 1988) ("[W]e must uphold the
[C]ommissioner's conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.") (citations omitted). Therefore, the
court must "'uphold the [Commissioner's] findings . . . if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adeguate to support [the Commissioner's]
conclusion.'" Irlanda Ortiz, 955 F.2d at 769 (guoting Rodriquez
v. Sec'v of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. While the ALJ's findings of fact are conclusive when
supported by substantial evidence, they "are not conclusive when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts." Nquven v. Charter, 172 F.3d 31,
35 (1st Cir. 1999) (per curiam) (citations omitted). If the
Commissioner has misapplied the law or has failed to provide a
fair hearing, however, deference to the Commissioner's decision
is not appropriate, and remand for further development of the
record may be necessary. See Carroll v. Sec'v of Health & Human
Servs., 705 F.2d 638, 644 (2d Cir. 1983); see also Slessinqer v.
Sec'v of Health & Human Servs., 835 F.2d 937, 939 (1st Cir. 1987)
("The [Commissioner's] conclusions of law are reviewable by this
court.") I apply these standards in reviewing the issues Barrett
raises on appeal.
III. DISCUSSION
Under the Social Security Act (the "Act"), an individual
seeking DIB is "disabled" if he or she is unable "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 has lasted or can be expected to last for a
- 10 - continuous period of not less than 12 months." 42 U.S.C. § 423
(d)(1)(A) (1991 & Supp. 2002). The Act instructs the ALJ to
apply a five-step sequential analysis to determine whether a
claimant is disabled.3
_____ At step four, the ALJ must determine whether the claimant's
impairment prevents him from performing his past work. See 20
C.F.R § 404.1520(e)(2002). In making this determination, the ALJ
must assess both the claimant's RFC, that is, what the claimant
can do despite his impairments, and the demands of the claimant's
prior employment. See id.; 20 C.F.R. § 404.1545(a) (2002); see
also Santiago v. Sec'v of Health & Human Servs., 944 F.2d 1, 7
(1st Cir. 1991) (per curiam). At this step, the claimant bears
the burden of showing that he does not have the RFC to perform
his former type of work. See Santiago, 944 F.2d at 5.
At step five, the burden shifts to the Commissioner to show
"that there are jobs in the national economy that [the] claimant
3 The five-step sequential analysis requires the ALJ to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. See 20 C.F.R. § 404.1520 (2002) .
- 11 - can perform." Heggartv v. Sullivan, 947 F.2d 990, 995 (1st Cir.
1991)(per curiam). The Commissioner must show that the
claimant's limitations do not prevent him from engaging in
substantial gainful work, but need not show that the claimant
could actually find a job. See Keating v. Sec'v of Health &
Human Servs., 848 F.2d 271, 276 (1st Cir. 1988) .
In this case, the ALJ concluded at step four of the
seguential evaluation process that Barrett was able to perform
his past relevant work prior to his date last insured. Barrett
argues that the decision must be reversed and remanded because it
is tainted by error. First, Barrett argues that the ALJ violated
42 U.S.C. § 421(h) (2002) by failing to ensure that "every
reasonable effort" was undertaken to obtain a review by a
gualified psychiatrist or psychologist of his alleged mental
impairments. Barrett contends that the ALJ failed to complete a
PRTF, as mandated by 20 C.F.R. § 404.1520a (2002), and failed to
reguest a consultative examination, see 20 C.F.R. §§ 404.1512(f)
(2002); 404.1517 (2002), or otherwise ensure that an adeguate
record was developed. Second, Barrett argues that because of
these procedural errors and the ALJ's failure to give proper
weight to Dr. Rines's report, the ALJ's decision is not supported
- 12 - by substantial evidence. Lastly, Barrett contends that the ALJ
failed to adhere to the requirements of SSR 96-7p when assessing
his credibility. I agree with Barrett's first argument and
remand the case on this basis.
The claimant is responsible for providing specific medical
evidence of his alleged mental impairment and its effect upon his
functional capacity for work. See 20 C.F.R. § 404.1512(a) (2002);
Gray v. Heckler, 760 F2d 369, 375 (1st Cir. 1985). However, the
ALJ is responsible for ensuring that "an adequate record is
developed during the disability hearing consistent with the
issues raised." Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997)(quotation omitted). Where it is within the power of
the ALJ "without undue effort," he must fill in an undeveloped
record "where there are gaps in the evidence necessary to a
reasoned evaluation of the claim." Heggartv, 947 F.2d at 997
(quotation omitted).
Barrett correctly notes that an ALJ must complete a PRTF
when the Commissioner determines that the claimant suffers from a
mental impairment which falls under those listed in 20 C.F.R. Pt.
404, Subpt. P, App.l, P t . A ("Part A" ) . This requirement does
not apply to mental impairments which do not fall within Part A.
- 13 - See 20 C.F.R. § 404.1520a (b) (".If we determine that you have a
medically determinable mental impairment(s), we must specify the
symptoms, signs, and laboratory findings that substantiate the
presence of the impairment(s) and document our findings in [a
PRTF].") (emphasis added). When a claimant's mental impairment
does not meet or egual the criteria of the listings, but is
nevertheless significant, the ALJ is still reguired to evaluate
the claimant's mental RFC. See Part A at § 12(A).
About two weeks after Barrett filed his application for DIB,
a PRTF was completed by Dr. Stenslie of DDS. Dr. Stenslie
concluded that there was insufficient medical evidence of any
impairment which would preclude Barrett from work activity.
However, this PRTF was completed prior to Barrett's evaluation
and subseguent personality disorder diagnosis at Manchester
Mental Health. An RFC completed by a DDS medical consultant
prior to Dr. Potenza's diagnosis echoed the conclusions found in
the PRTF.
Although the ALJ had before him the PRTF, RFC, and Dr.
Potenza's report, the ALJ concluded that"[t]he claimant has no
impairment which meets the criteria of any of the listed
impairments described in Appendix 1 of the Regulations (20 C.F.R.
- 14 - Part 404, Subpart P, Appendix 1). No treating or examining
physician has mentioned findings equivalent in severity to the
criteria of any listed impairment." Record at 15, 18 (emphasis
added). This finding is flatly contradicted by Dr. Potenza's
diagnosis that Barrett suffered from personality disorder. Dr.
Potenza's report uneguivocally diagnosed Barrett as suffering
from personality disorder, an impairment expressly listed under
Part A of the regulations. See Part A at § 12.08. Furthermore,
the ALJ relied upon Dr. Potenza's report when he assessed
Barrett's mental impairments and RFC. Indeed, the ALJ chose to
give controlling weight to the report over Dr. Rines' subseguent
examination and evaluation of Barrett. Therefore, the ALJ's
determination that Barrett's illness did not fall within the
listed impairments of the regulations is internally inconsistent
with his adoption of Dr. Potenza's report. I also note that the
ALJ's decision fails to recognize Dr. Potenza's diagnosis of
personality disorder and, instead, focuses solely upon Barrett's
mental deficiency and anxiety. Thus, the ALJ's decision is
further flawed because it simply overlooks the personality
disorder and whether it necessitated a PRTF.
- 15 - The Commissioner argues that Dr. Stenslie's PRTF indicates
that Barrett did not suffer from a medically determinable
impairment. Thus, either the ALJ's obligation to perform a PRTF
was satisfied by Dr. Stenslie's completion of the form or,
presumably, no PRTF was necessary because Barrett's alleged
illness was not listed in Part A. I reject these arguments. Dr.
Stenslie's PRTF did not relieve the ALJ of his duty to complete a
PRTF and to otherwise ensure that an adeguate record was
developed "where there [were] gaps in the evidence necessary to a
(citations omitted). Here, the record is devoid of any PRTF
regarding the severity of Barrett's diagnosed personality
disorder. As it stands, the ALJ's decision gives controlling
weight to Dr. Potenza's report, yet it makes no mention of
Barrett's personality disorder.
Accordingly, the ALJ was obligated to complete a PRTF and
assess the severity of Barrett's personality disorder. See 20
C.F.R. § 404.1520a; Part A at § 12.08(A) and (B). His failure to
do so and to attach the PRTF to his decision warrants remand to
the SSA. See Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir.
2000); Plummer v. Apfel, 186 F.3d 422, 434 (3rd Cir. 1999);
- 16 - Stambaugh v. Sullivan, 929 F.2d 292, 296 (7th Cir. 1991) .
Furthermore, the ALJ failed to take all reasonable efforts to
ensure that an adequate record was developed regarding Barrett's
personality disorder.
IV. CONCLUSION
When a court finds that the administrative record is
incomplete, a court should vacate the Commissioner's decision and
remand the matter for further proceedings consistent with the
reasoning in its opinion. See 42 U.S.C. § 405(g); Seavev v.
Barnhart 276 F.3d 1, 10-11 (1st Cir. 2001). Accordingly, I
vacate the judgment denying Barrett benefits, pursuant to
sentence four of 42 U.S.C. § 402(g), and remand this matter to
the Commissioner for further proceedings consistent with this
Memorandum and Order. The Commissioner should take all
reasonable efforts to ensure that an adequate record is generated
regarding the severity of Barrett's personality disorder, and
whether and to what extent this alleged mental disorder impaired
his ability to function.
I grant Barrett's motion for an order remanding the decision
of the Commissioner (Doc No. 11), and deny the defendant's motion
- 17 - for order affirming the decision of the Commissioner (Doc. No.
13) .
SO ORDERED.
Paul Barbadoro Chief Judge
March 28, 2003
cc: Francis Jackson, Esg. Dennis Bezanson, Esg. David Broderick, Esg.
- 18 -