Kathleen Price v. SSA CV-07-166-PB 09/02/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kathleen L. Price
v. Case No. 07-cv-166-PB Opinion No. 2008 DNH 164 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Kathleen Price asks me to reverse the Commissioner's
determination that she is not eligible for disability insurance
benefits. The Commissioner seeks an order affirming his
decision. For the reasons set forth below, I grant in part
Price's motion to reverse, deny the Commissioner's motion to
affirm, and remand this case to the Social Security
Administration.
I. BACKGROUND1
Kathleen Price applied for disability insurance benefits on
1 The background information is drawn from the Joint Statement of Material Facts (Doc. No. 9) submitted by the parties. Citations to the Administrative Record Transcript are indicated by "T r ." Because Price's mental disability claims are the only claims relevant to this appeal, this recitation of the facts focuses on evidence relating to Price's mental health. May 24, 2004, claiming an onset date of June 1, 2002. T r . at
45-47. At the time of her application, she was fiftyyears old.
I d . at 45. She had past relevant work experience as a dish
washer, a certified nurse's aid, and a fitting room attendant.
I d . at 16, 50. After her claim was denied. Price requested a
hearing before an Administrative Law Judge ("ALJ"), which took
place on November 2, 2005. I d . at 33, 274-95. At the hearing.
Price waived her right to bring an attorney or other
representative. I d . at 276. The ALJ decided that Price was not
entitled to benefits. I d . at 13-25. On May 11, 2006, the
Appeals Council denied Price's request for review, thereby making
the ALJ's decision the final decision of the Commissioner of the
Social Security Administration ("Commissioner"). I d . at 6-8. On
April 6, 2007, the Appeals Council denied Price's request to
reopen the ALJ's decision to consider new evidence of her mental
disability. I d . at 10-11.
A. Evidence of Price1s Mental Disability in the Administrative Transcript
The record first references Price's mental health on April
2, 2002, when Price stated that her prescription for Zoloft was
no longer "tak[ing] the edge off her 'nerves.'" I d . at 98. The
- 2 - treating nurse practitioner recommended counseling to help with
Price's stress and anxiety, and she prescribed a trial of
Klonopin. I d . at 99. On April 23, 2002, Price indicated that
she was more worried about her emotional problems than her
physical ones. I d . at 101. (She continued to feel the same by
the time of the hearing in front of the ALJ. I d . at 284.)
On May 22, 2002, Price told the treating nurse practitioner
that Zoloft was still not controlling her anxiety. I d . at 109.
The nurse practitioner noted, however, that Price had neither
taken steps to fill the prescription for Klonopin nor sought
counseling. I d . at 109. In another visit in July, Price reported
that she was under a great deal of stress at home and was very
frustrated with her family. I d . at 118. The nurse practitioner
observed that Price was weepy during the visit. I d . at 118.
In August 2002, the treating nurse practitioner noted that
Price continued to have emotional and financial difficulties at
home, including an incident in which Price's son threw her
against a wall, and she continued picking at her skin due to
anxiety. I d . at 120. Price reported that her financial
difficulties prevented her from filling her prescriptions. Id.
at 120. In September, Price reported that she felt depressed
- 3 - regarding her daughter. I d . at 129. In November, Price reported
experiencing sleep disturbance, appetite disturbance, and a lack
of energy. The treating nurse practitioner concluded that
Price's family-related stress was overwhelming the treatment for
her depression. I d . at 146. The stress of dealing with her
family, in particular her daughter, was even causing physical
problems, as she complained during a January 2003 visit. I d . at
151.
In September 2003, the treating nurse practitioner noted
that Price denied experiencing "depression, anxiety, and mental
disturbance," but the nurse practitioner took no steps to curtail
or cancel Price's prescriptions for Zoloft and Klonopin. I d . at
179, 181. About one month later, though. Price's chief complaint
was depression and she complained of sleeping problems. While
meeting with a nurse practitioner. Price cried when relating her
difficulties at home, but also stated that she did not have
enough money to fill her prescriptions and asserted that she did
"not care about herself." I d . at 188. In November 2003, Price's
problems at home escalated when she struck her daughter, causing
the daughter to leave for a shelter. Dr. Hayes identified a need
to counsel Price about her anger management. I d . at 196.
- 4 - At a visit in February 2004, Price complained of depression,
but also expressed her desire to obtain a certified nurses
assistant job. I d . at 211. In March, Price informed Dr. Hayes
that she had been taking neither Zoloft nor Klonopin for several
months due to their cost, and Dr. Hayes noted that Price was
tearful, shaky, anxious and discouraged. I d . at 95. Her
situation had improved by April, and the treating nurse
practitioner noted that Price was "doing well stress wise at
home, feeling more at ease." I d . at 230.
Nevertheless, Dr. Hayes responded to a Social Security
questionnaire in June 2004 that Price had "multiple psychosocial
issues." I d . at 241. He repeated his findings of depression,
anxiety, impulsivity and neurodermatitis in a letter to the
Disability Claims Adjuster in September. He also opined, "I
believe it is near impossible for Kathy to hold down gainful
employment." I d . at 252.
Nurse Practitioner Blood ("NP Blood") of Concord Psychiatric
Associates treated Price for depression. I d .at 285. The sole
evidence in the administrative record of her treatment and
diagnoses, however, consists of a single medical source
statement. NP Blood's medical source statement concluded that
- 5 - Price had moderate, marked, and extreme impairments affecting her
ability to function in day-to-day life. It further stated that
Price's symptoms included poor concentration, impaired memory,
depressed mood, tearfulness, anxiety, agitation, poor coping
skills with stress management, and thoughts of suicide. I d . at
271-72. The medical source statement consisted entirely of
conclusions, however, with no supporting documentation.
At the hearing before the ALJ in November, Price testified
that she was very depressed and felt that she could not "go out
in the working world without breaking down and crying." I d . at
284. She reported that she was on multiple medications for her
emotional problems and was receiving treatment from Dr. Hayes,
Nurse Practitioner Joyce Blood, and Blair Ambrose (a counselor at
Riverbend). I d . at 285-89. She also commented that her family
caused her considerable stress and she was often afraid to go out
in public. I d . at 292.
B. The ALJ's Decision
In his March 2, 2006, decision, the ALJ followed the five-
step sequential evaluation process set forth in 20 C.F.R. § 1520
to determine whether Price was disabled. I d . at 16. At the
third step, the ALJ determined that Price's depression, anxiety,
- 6 - and impulsive behavior did not meet or equal the criteria of §
12.04 of the Listing of Impairments.2 I d . at 24. This decision
was founded on the ALJ's conclusion that the record contained
evidence of appetite disturbance but no change in weight; sleep
disturbance that was solely attributable to physical pain;
inconsistent reports of decreased energy; no feelings of guilt or
worthlessness; no significant difficulty with concentration or
thinking except when she "has alot on her mind" (sic); and no
thoughts of suicide,3 hallucinations, or paranoid thinking. Id.
at 23 .
2 To meet the criteria for a depressive syndrome under § 12.04 of the Listing of Impairments, Price would first need to establish a medically documented persistence, either continuous or intermittent, of at least four of the following: (1) anhedonia or pervasive loss of interest in almost all activities; (2) appetite disturbance with a change in weight; (3) sleep disturbance; (4) psychomotor agitation or retardation; (5) decreased energy; (6) feelings of guilt or worthlessness; (7) difficulty concentrating or thinking; (8) thoughts of suicide; or (9) hallucinations, delusions, or paranoid thinking. Listing of Impairments § 12.04, 20 C.F.R. P t . 404, Subpt. P, A p p . 1. She would then need to establish that this disorder caused marked restrictions in at least two areas of functioning or a medically documented history of a chronic affective disorder with certain other factors. Id.
3 It is not clear why the ALJ concluded that there was no evidence of thoughts of suicide in the record. Although NP Blood's medical source statement did not specify the period during which Price experienced such thoughts, it did state that Price experienced "[tjhoughts of suicide." See T r . at 272.
- 7 - In assessing Price's residual functional capacity ("RFC"),
the ALJ found that she was able to perform light work with
limitations in stress tolerance. I d . at 25. Based on this RFC,
the ALJ found at step four that Price could return to her past
relevant work ("PRW") as a dishwasher and was therefore not
disabled. I d . at 24-25.
C. The Appeals Council Decision
After the ALJ's decision. Price requested a review by the
Appeals Council. The Appeals Council denied review. I d . at 6.
After obtaining counsel. Price then requested that the Appeals
Council reopen the decision, submitting records from Concord
Psychiatric Associates and Riverbend Mental Health, Inc. in
support of that request. The Appeals Council denied her request
to reopen. I d . at 10.
D. Evidence of Price's Disability in the New Materials
The new medical information that Price submitted to the
Appeals Council consists of two sets of treatment records, some
of which were in existence at the time of Price's November 2,
2005, hearing before the ALJ and some of which were generated
later. The first set of records consists of the office notes of
NP Blood at Concord Psychiatric Associates from June 2005 through January 2006. See Claimant's Request for Reconsideration of
Appeals Council's Denial of Claimant's Request for Review of
Administrative Law Judge's Decision Dated March 2, 2006 and For
Extension of Time to File Further Appeals with the U.S. District
Court, Ex. 1A, Matter of Kathleen L. Price, Claim No. XXX-XX-XXXX
(Soc. Sec. Admin. June 27, 2006) (hereinafter "Blood"). The
second set of records consists of clinical evaluations and office
notes from Riverbend Mental Health from September 2005 to May
2006. See Claimant's Request for Reconsideration, Ex. IB., supra
(Soc. Sec. Admin. June 27, 2006) (hereinafter "Riverbend"). For
clarity, I describe both sets of records together in
chronological order.
NP Blood observed that Price was experiencing "anhedonia"
during a June 2005 visit. (Blood at 1.) The counselors at
Riverbend noted "anhedonia" or a "markedly diminished interest or
pleasure in all activities every day" lasting from September 2005
to February 2006. (Riverbend at 9, 12, 39, 43, 46, 68.) During
her June 2005 visit to Concord Psychiatric, Price complained of
having a low appetite. (Blood at 2.) The counselors at
Riverbend observed "appetite disturbance" over a period of four
months starting in September 2005. (Riverbend at 9, 12, 39, 43,
- 9- 46.) Price mentioned that she had a significant change in weight
from this symptom (Riverbend 26, 33), but later a counselor noted
that Price's weight had not changed (Riverbend at 68). NP Blood
noted the symptom of "sleep disturbance" during three separate
visits in August 2005, September 2005, and January 2006. (Blood
at 3, 5, 7.) The symptom persisted for three months while Price
was in treatment at Riverbend. (Riverbend at 9, 11, 12, 16, 39,
43.) NP Blood originally attributed Price's sleep disturbance to
physical suffering from back pain (Blood at 1), but she later
characterized it as a symptom of Price's depression (Riverbend at
9). NP Blood noted that Price suffered from "low motivation . .
. and low energy" during a June 2005 visit. (Blood at 1.) The
counselors at Riverbend described the symptom as "decreased
energy" over a period of four months starting in September 2005.
(Riverbend at 9, 11, 39, 40.) In August and September 2005, NP
Blood noted the symptom of feelings of guilt and worthlessness.
(Blood at 3, 5.) The counselors at Riverbend observed that these
feelings lasted from September 2005 to February 2006. (Riverbend
9, 11, 12, 16, 39, 40, 43, 46, 73.) NP Blood recorded that Price
was having thoughts of suicide in June and August of 2005.
(Blood at 1, 2, 3.) At sessions at Riverbend, Price communicated
- 10 - thoughts of suicide persisting for eight months, starting in July
2005. (Riverbend at 2, 9, 11, 12, 17, 39, 40, 43, 46, 56, 61,
68 . )
About two weeks after her hearing in November 2005, Price's
suicidal thoughts escalated to the point that she had herself
voluntarily admitted to Concord Hospital for a psychiatric
hospitalization. At the hospital, the attending physician
observed that Price was experiencing decreased appetite with a
change in weight, sleep disturbance, decreased energy, feelings
of guilt, thoughts of suicide, and psychomotor slowing.
(Riverbend at 22, 26, 30, 33.)
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), 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 decision of the ALJ. My review is limited to
determining whether the ALJ used the proper legal standards and
found facts based upon the proper quantum of evidence. Ward v.
Comm'r of Soc. Sec.. 211 F.3d 652, 655 (1st Cir. 2000); Nquven v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999).
- 11 - The ALJ's findings of fact are accorded deference as long as
they are supported by substantial evidence. Ward. 211 F.3d at
655. Substantial evidence to support the ALJ's factual findings
exists "if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support his
conclusion." Ortiz v. Sec'v of Health & Human Servs.. 955 F.2d
765, 769 (1st Cir. 1991) (quoting Rodriquez v. Sec'v of Health &
Human Servs.. 647 F.2d 218, 222 (1st Cir. 1981)). If the
substantial evidence standard is met, the ALJ's factual findings
are conclusive even if the record "arguably could support a
different conclusion." I d . at 770. The ALJ's findings are not
conclusive, however, if they are derived by "ignoring evidence,
misapplying the law, or judging matters entrusted to experts."
Nquven. 172 F.3d at 35.
The ALJ is responsible for determining issues of credibility
and for drawing inferences from evidence in the record. Ortiz.
955 F.2d at 769. It is the role of the ALJ, not the role of this
court, to resolve conflicts in the evidence. Id.
Ill. ANALYSIS
Price's primary argument is that the matter should be
- 12 - remanded because the ALJ failed to adequately develop the
record.4 The ALJ's decision to deny benefits rested in part on
the apparent lack of evidence of certain symptoms of depression
required to meet Listing 12.04. Price argues that the ALJ was at
fault for the absence of this evidence because Price was
unrepresented at the hearing, the absence of these records
constituted a gap in the record, the ALJ was aware of that gap,
the ALJ took insufficient efforts to obtain the records from NP
Blood and Riverbend that could have filled that gap, and the gap
might reasonably have affected the ALJ's ultimate decision to
deny benefits.
As the Supreme Court has explained, "Social Security
proceedings are inquisitorial rather than adversarial. It is the
ALJ's duty to investigate the facts and develop the arguments
both for and against granting benefits." Sims v. Apfel, 530 U.S.
103, 110-11 (2000). The ALJ's duty to develop the record is
4 Price also argues that the case should be remanded because (1) Price's decision not to hire an attorney or other representative was not knowing and voluntary, and (2) the ALJ failed to accord the proper weight to NP Blood's assessment of Price's non-exertional limitations. The first argument is clearly meritless. I need not consider the second because it is mooted by the need to consider additional evidence from NP Blood on remand.
- 13 - heightened if the plaintiff is unrepresented by counsel at the
hearing, Evangelista v. Sec'v of Health & Human Servs., 826 F.2d
136, 142 (1st Cir. 1987), or if there is a gap in the record and
the ALJ could have filled in that gap without undue effort,
Currier v. Sec'v of Health. E d u c . & Welfare. 612 F.2d 594, 598
(1st Cir. 1980) ("we believe this responsibility increases . . .
where there are gaps in the evidence necessary to a reasoned
evaluation of the claim, and where it is within the power of the
administrative law judge, without undue effort, to see that the
gaps are somewhat filled.").
The case of Heggartv v. Sullivan. 947 F.2d 990 (1st Cir.
1991), whose facts are similar to the case at bar, is
instructive. In Heggartv. the claimant was unrepresented and
proffered neither office notes nor reports from a Dr. Bixby, who
was treating the claimant's allergies at the time of the hearing.
947 F.2d at 992. The ALJ told the claimant that he would obtain
the necessary information from Dr. Bixby after the hearing, but
failed to do so. Id. Relying primarily on older treatment
records, the ALJ then determined that the claimant's eczema did
not meet Listing 8.05. I d . at 994. The court found that the ALJ
failed to adequately develop the record because the absence of
- 14 - Dr. Bixby's treating records created a gap in the record as to
the current severity of the claimant's eczema. I d . at 997.
Without Dr. Bixby's records, the only medical evidence on this
point consisted of a brief set of hospital records indicating
that the claimant received allergy shots in 1988, a "cursory"
report from a consulting rheumatologist describing the claimant
as suffering from "severe eczema," and RFC forms from two non
examining physicians. Id.
For the reasons set forth below, I agree with Price that the
ALJ breached his duty to develop a full and fair record from
which to make a reasonable determination regarding Price's
disability.
First, because Price was unrepresented during the hearing,
the ALJ had a heightened duty to develop the record. See
Evangelista. 826 F.2d at 142.
Second, a gap existed in the record in that it contained
neither the office notes supporting NP Blood's diagnoses nor any
treatment records from Riverbend. The ALJ was clearly aware of
this gap; the ALJ asked Price several questions about her
treatment at Riverbend during the hearing and specifically
mentioned the absence of NP Blood's office notes in his decision.
- 15 - T r . at 21, 288-89. Additionally, it is significant that NP
Blood's medical source statement identified "[t]houghts of
suicide" as one of Price's symptoms. This means that the record
before the ALJ alerted him to the possibility that this symptom
could be both persistent and medically documented. This
triggered a duty on the part of the ALJ to further develop the
record regarding that and other symptoms of a depressive
syndrome. See Deblois v. Sec'v of Health & Human Servs.. 686
F.2d 76, 81 (1st Cir. 1982) (finding that the ALJ had a duty,
once on notice of the fact that the claimant's mental illness
might have originated earlier, "to develop the record of the
etiology of the illness, its course, and its severity.").
It would not have required "undue effort" for the ALJ to
obtain the missing records, because the ALJ presumably could have
remedied their absence by sending more specific follow-up
requests to NP Blood and to Riverbend. See Currier, 612 F.2d at
598. Moreover, the efforts the ALJ did take to obtain additional
records from Price's treating sources were inadequate,
particularly in light of the ALJ's statement to Price that he
would try to obtain medical records from NP Blood and Counselor
Ambrose and "get all that information into the record." T r . at
- 16 - 294; see Heggartv, 947 F.2d at 997 (finding a heightened duty to
develop the record where the ALJ specifically informed the
claimant that he would arrange to obtain the treating physician's
records). Under the relevant regulations, the ALJ is to "make
every reasonable effort" to assist claimants in obtaining medical
reports from their treating sources. 20 C.F.R. § 404.1512(d).
"Every reasonable effort" means an initial request for evidence
from a medical source and one follow-up request if the evidence
is not received. 20 C.F.R. § 404.1512(d)(1). The ALJ's efforts
to obtain medical records fell short of this standard. Following
the hearing, the ALJ requested additional medical records from NP
Blood,5 but did not attempt to contact Counselor Ambrose,
possibly out of an erroneous belief that NP Blood was also
employed by Riverbend. Moreover, when NP Blood responded by
providing completed physical and mental medical source statements
but omitted her office notes, the ALJ failed to make a follow-up
request for those notes. T r . at 84, 267-73.
5 The ALJ also twice requested updated records from Dr. Hayes. T r . at 85, 86. Those records are not, however, material to the issues addressed in this appeal.
- 17 - Finally, the resulting gap in the record is significant.
Had the ALJ obtained NP Blood's office notes and the Riverbend
treatment records, his decision might reasonably have been
different. Rather than merely having NP Blood's conclusory
assertions of disability, the ALJ would have had an extensive
treatment record that provides substantial evidence of the
affective disorder symptoms he found lacking in the record. If
credited, these medical records show that Price repeatedly
experienced anhedonia and a pervasive loss of interest, suicidal
thoughts, feelings of guilt and worthlessness, decreased energy,
and sleep disturbance. Together, these symptoms appear to
satisfy the first prong of the listing for an affective disorder
disability (a "[m]edically documented persistence, either
continuous or intermittent, of . . . [d]epressive syndrome
characterized by at least four" out of nine possible symptoms,
see Listing of Impairments § 12.04, 20 C.F.R. P t . 404, Subpt. P,
App. 1). If that first prong is satisfied, the ALJ would need to
consider whether those symptoms resulted in marked restrictions
in at least two areas of functioning or a medically documented
history of a chronic affective disorder with certain other
factors — questions that he never reached in his March 2, 2006,
- 18 - decision. See T r . at 23; see also Listing of Impairments §
12.04, 20 C.F.R. P t . 404, Subpt. P, App. 1. For the foregoing
reasons, then, the ALJ failed in his duty to adequately develop
the record.
IV. CONCLUSION
The ALJ failed to adequately develop the administrative
record. This failure justifies a remand under sentence four of
42 U.S.C. § 405(g).6 See Seavev v. Barnhart. 276 F.3d 1, 13 (1st
Cir. 2001) ("Sentence six has been referred to as a 'pre-judgment
remand, ' employed where the federal court has not ruled on the
validity of the Commissioner's position, while sentence four has
been referred to as a 'post-judgment remand.'"); see also Buckner
v . Apfe1 , 213 F.3d 1006, 1013 (8th Cir. 2000) (remanding under
sentence four to correct ALJ's failure to develop the record).
Accordingly, I grant in part Price's motion to reverse (Doc. No.
7), deny the Commissioner's motion to affirm (Doc. No. 8), and
remand this case to the Social Security Administration. The
6 Because the ALJ's failure to develop the administrative record requires a sentence four remand, I need not address Price's alternative argument for a remand under sentence six of 42 U.S.C. § 4 0 5 (g).
- 19 - clerk is directed to enter judgment in accordance with this order
and close the case.
SO ORDERED.
/s/Paul Barbadoro____________ Paul Barbadoro United States District Judge
September 2, 2008
cc: Elizabeth R. Jones, Esq. Robert Rabuck, Esq.
- 20 -