Page v . Commissioner, SSA 08-CV-340-JD 03/16/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michele L . Page
v. Civil N o . 08-cv-340-JD Opinion N o . 2009 DNH 025 Michael J. Astrue, Commissioner, Social Security Administration
O R D E R
Michele L . Page seeks review, pursuant to 42 U.S.C. §
405(g), of the Commissioner’s decision denying her application
for Social Security Disability Benefits. Page contends that the
decision should be reversed because the Administrative Law Judge
(“ALJ”) ignored Page’s mother’s testimony at the hearing,
improperly evaluated Page’s credibility, relied on an outdated
residual functional capacity evaluation, erred in failing to
contact one of Page’s treating physicians to provide a more
complete evaluation, failed to properly evaluate her limitations,
and ignored the vocational expert’s testimony about her work
restrictions. The Commissioner contends that the decision should
be affirmed. Background
Page filed an application for Disability Insurance Benefits
in February of 2003, claiming a disability as of June 3 0 , 2000,
due to anxiety and depression. Her application was denied
initially and again following a hearing. When she sought review
in this court, the Commissioner filed an assented-to motion to
reverse the decision and to remand the case to the ALJ to develop
the evidence pertaining to Page’s former work and the amounts she
earned in each occupation. Page filed a second application for
benefits, which was consolidated with the pending application.
The medical record shows that Page was first treated for
anxiety at Dover Internal Medicine in May of 1999, where she was
prescribed Xanax, Zoloft, medications used to treat major
depressive disorder and panic disorder, and encouraged to seek
counseling. Her next visit was in February of 2002 following the birth of her daughter. At that time, Cheryl Corrao, PAC, noted
that Page had been treated for anxiety in the past but that
anxiety was no longer a problem. In August of 2002, however,
Page returned with complaints of anxiety, and Corrao prescribed
Effexor and Xanax. Corrao noted that Page had had mild anxiety
with a history of phobia about leaving her home but had improved
with medication through March of 2003. Corrao also noted that
Page had not sought counseling.
2 On May 1 4 , 2003, Thomas Lynch, Ph.D., performed a
consultative evaluation of Page. Lynch noted that Page had
emotional difficulties, including panic attacks, and that she had
stopped working when her daughter was born. He also noted that
she had become accustomed to staying at home to take care of her
daughter and her disabled mother. Page told Lynch that she was
taking correspondence college courses. Although Page appeared to
be somewhat anxious and reported stress related to taking care of
her mother and daughter, Lynch found her within normal limits.
Lynch concluded that Page had intact understanding and
memory and could perform basic tasks of housekeeping and
childcare. He also found that she had normal social skills and
otherwise functioned within normal limits except that she had
difficulty maintaining herself outside of her own home. He
diagnosed panic disorder with mild to moderate agoraphobia and
adjustment disorder with depressed mood. Because of a lack of treatment, Lynch stated that Page’s prognosis was guarded but
noted that if she obtained treatment, she could improve.
On May 2 8 , 2003, a state agency psychologist, Nicolas S .
Kalfas, Ph.D., completed a Psychiatric Review Technique Form
(“PRT Form”) and Mental Residual Functional Capacity Assessment
based on a review of Page’s file and records. He relied heavily
on Lynch’s evaluation. He found only mild or moderate
3 limitations. On the PRT Form, Kalfas indicated that Page
suffered from an anxiety-related disorder with recurrent severe
panic attacks, which occurred, on the average, at least once a
week. He also checked a box for a “medically determinable
impairment . . . that does not precisely satisfy the diagnostic
criteria above.” Statement of Facts at 1 0 . He found that Page could work without unreasonable disruptions if she were given
time to adapt to a work environment and provided a somewhat
isolated work area in a low stress environment. He noted Page’s
difficulty in leaving her home.
In August and September of 2003, Page was seen by Carla
Contarino, Ph.D., for psychological evaluation and treatment with
counseling. Contarino noted that Page was extremely anxious and
diagnosed a panic disorder with agoraphobia. Contarino
recommended relaxation techniques and anger management. On a Medical Assessment of Ability to do Work-Related Activities
(Mental) form, Contarino indicated that Page often had difficulty
coming to counseling sessions but rated her fair to good in all
areas of evaluation. She also stated that Page had limited
ability to relate socially and to maintain focus and performance.
She further stated that Page’s anxiety could impair her
reliability and predictability. Contarino diagnosed panic
disorder with agoraphobia, finding Page seriously limited in half
4 of the categories rated. In a letter to Page’s attorney,
Contarino stated that Page did not attempt to do the prescribed
anxiety reduction exercises and did not demonstrate motivation to
solve her problems.
Page also continued to treat with Corrao at Rochester Hill
Family Practice in 2003 and 2004. In May of 2004, Corrao completed a Medical Source Statement of Ability to do Work-
Related Activities (Physical), in which she noted only one
functional limitation, which was an inability to drive due to
anxiety. She also completed a mental impairment questionnaire
which stated that Page displayed phobias about leaving her home,
had difficulty concentrating, and needed psychiatric care.
Corrao also noted that she had not observed Page’s anxiety
attacks and that Page was tolerating her medication.
In November of 2004, Page made a report of her daily activities and functioning. She said that she did not drive
because of her medications and that she could not tolerate being
in a car or around other people. She reported that she did
housework and took care of her daughter, her mother, and their
dog. She also said that she did not go outside except to take
her daughter into the yard and to put the dog out. She also
reported that she had difficulty with memory, understanding,
5 following instructions, paying attention, getting along with
others, and in handling stress and change.
From March through August of 2005, Page was seen by a family
practitioner, D r . Terry Bennett. He prescribed Effexor for
anxiety. D r . Bennett completed a Medical Assessment of Ability
to do Work-Related Activities (Mental) on September 2 7 , 2005, in which he found that Page had marked limitations in her ability to
do all but four work-related activities.
A hearing was held on Page’s first application before ALJ
Robert Klingebiel on June 1 0 , 2004. Page was represented by an
attorney, and Page’s mother, Linda McGhee, attended the hearing.
Page did not attend, and her attorney explained she was unable to
attend because of her anxiety and agoraphobia. The ALJ issued
his decision in September of 2004, denying Page’s application for
benefits. As is noted above, that decision was reversed and remanded for further proceedings, and Page’s subsequent
application was consolidated with the first application.
On remand, ALJ Klingebiel held a hearing on October 2 7 ,
2005. Page’s counsel and her mother attended the hearing, and
her mother testified. A vocational expert also testified.
McGhee testified that Page had lived with her since 1999 and that
at the time of the hearing, Page, her husband, and her daughter
all lived with McGhee. She said that Page had worked at
6 D’Angelos Restaurant until 2000, but that McGhee had to drive her
to work because of her panic attacks. McGhee testified that Page
had anxiety and depression, that she would get frustrated and
angry, that she would not go out, and that if she were in the
car, McGhee would have to stop frequently to let her get out.
She also testified that some of the medications made Page tired and did not help her get out of the house.
In questioning the vocational expert about work that a
hypothetical person could do with certain limitations, the ALJ
described a younger individual, with a high school education, and
with no physical limitations. The ALJ described non-physical
limitations as someone who could only do relatively simple
transactions or routine tasks, who would need a job that did not
require a great deal of team interaction or fast paced work, who
would have minimal interaction with the public and co-workers, and who would have only occasional interaction with supervisors.
The vocational expert recommended jobs as a telemarketer. When
the ALJ asked about cleaning jobs, the vocational expert answered
that many of the jobs require work as a team. They also
discussed other possible work options.
Page’s attorney questioned the vocational expert about the
requirements of some of the jobs that had been discussed. The
vocational expert testified that if the applicant was unable to
7 ride in a car and would not leave her home, no employment would
be available for her. The ALJ decided that more time was needed
to get vocational information.
A supplemental hearing was held on May 3 , 2006. McGhee
attended the hearing but was not asked to testify, based on
Page’s attorney’s proffer that McGhee would confirm that Page’s condition had not changed since the last hearing. Page did not
attend. A new vocational expert testified. In response to the
limitations posed by the ALJ, the vocational expert testified
that such a person could work as an office cleaner, janitorial
worker, or chambermaid. At the end of the hearing, the ALJ asked
Page’s attorney if there were any other medical records that he
did not have, and the attorney responded that he was not aware of
other records. Page’s attorney stated that he had checked with
Dr. Bennett and that the only new records were for refilling prescriptions for medication.
The ALJ issued his decision on June 2 3 , 2006. He found that
Page had a severe impairment caused by panic disorder with mild
to moderate agoraphobia, which did not meet or equal any of the
listed impairments. He found that Page’s description of her
limitations was not entirely credible. The ALJ found that Page
retained the residual functional capacity to work in a low stress
environment without constant interaction with other people, to
8 occasionally interact with the public, to have occasional social interaction with co-workers and supervisors. He concluded that Page had no relevant past work but that she retained the ability to perform other work in the national economy. Based on those findings, the ALJ determined that Page was not disabled. The Appeals Council denied Page’s request for review, making the ALJ’s determination the final decision of the Commissioner.1
Discussion
A five-step process is used to evaluate an application for
benefits. 20 C.F.R. § 404.1520(a). The applicant bears the
burden through the first four steps to show that she is disabled.
Freeman v . Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the
fifth step, the Commissioner bears the burden of showing that
jobs exist in the national economy that the applicant can
perform. Id.
The court’s review under § 405(g) is “limited to
determining whether the ALJ deployed the proper legal standards
and found facts upon the proper quantum of evidence.” Nguyen v .
Chater, 172 F.3d 3 1 , 35 (1st Cir. 1999). If the ALJ’s factual
1 On March 2 , 2009, Page moved for an extension of time to respond to the Commissioner’s motion to affirm. She then filed her response on March 1 2 , 2009. Given the outcome, it is not necessary to consider Page’s response.
9 findings are supported by substantial evidence in the record,
they are conclusive, even if other evidence would support a
contrary conclusion. Id.; Tsarelka v . Sec’y of Health & Human
Servs., 842 F.2d 529, 535 (1st Cir. 1988). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v . Perales, 402 U.S. 389, 401 (1971).
A. Mother’s Testimony
Page’s mother, Linda McGhee, testified at the hearing held
on October 2 7 , 2005, and attended but did not testify at the
hearing held on May 3 , 2006. The ALJ’s decision does not mention
the substance of McGhee’s testimony. Page contends that the ALJ
was required t o , but did not, consider her mother’s testimony.
In the process of determining whether a claimant is
disabled, an ALJ is required to consider lay witness testimony
about the severity of the claimant’s limitations and her ability
to work. 20 C.F.R. § 404.1513(d)(4); 20 C.F.R. § 404.1529(c)(3);
Willcockson v . Astrue, 540 F.3d 8 7 8 , 881 (8th Cir. 2008); Stout
v . Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006).
If an ALJ chooses to disregard lay witness testimony, he must
give reasons for doing so that are specific to each witness.
Bruce v . Astrue, --- F.3d ---, 2009 WL 539945, at *2 (9th Cir.
10 Mar. 5 , 2009). It is error to ignore completely testimony from
witnesses, such as family members, who may be the only ones who
observe a claimant’s limitations. Willcockson, 540 F.3d at 881.
The ALJ did not mention McGhee’s testimony in his decision.
The Commissioner asks the court to assume that the ALJ considered
McGhee’s testimony and also argues the ALJ would have discredited McGhee’s testimony for the same reasons that he found Page’s
statements about her limitations not entirely credible. Neither
the legal standard nor the record would support an assumption
that the ALJ considered McGhee’s testimony. Alternatively, the
Commissioner asserts that substantial evidence in the record
supports the ALJ’s decision, making any failure to consider
McGhee’s testimony harmless.
B. Record Evidence
In her disability report, which is dated March 3 0 , 2003,
Page wrote that she had anxiety, depression, and panic attacks
that kept her from going out of the house and from riding in a
car. She wrote that she stopped working because she did not want
to go out of the house or to be around people. She explained
that she was taking medication, Effexor, which helped somewhat,
but that she still was not able to leave the house except for
medical appointments.
11 The ALJ found that Page had a panic disorder with mild to
moderate agoraphobia, which could be expected to produce the
symptoms Page described but not with the intensity, duration, and
limiting effects that Page claimed. The ALJ found Page’s
descriptions of her limitations were not entirely credible
because she had not followed prescribed treatments at all times, because she was able to care for her daughter competently,
because she was able to concentrate and stay focused, and because
she was taking a correspondence college course. In making that
assessment, the ALJ relied on notes made by PAC Corrao, D r .
Lynch, and D r . Contarino. The ALJ did not credit D r . Bennett’s
opinions, finding them unsupported by the record.
The ALJ concluded that Page would be able to work in a low
stress environment, with only occasional interaction with the
public, with other co-workers but not in the context of work teams or in an environment that required constant and physically
close contact with other workers. The ALJ also found that Page
could deal appropriately with supervisors on an occasional basis
but not where supervision is constant, frequent, or physically
close. Based on the vocational expert’s opinion, the ALJ
concluded that Page could work as an office cleaner or as a
chambermaid.
12 Page contends that the ALJ did not properly assess her
credibility or the record evidence. Because she did not testify
or attend the hearings, the ALJ’s assessment of Page’s
credibility was not based on his personal observations of her.
Instead, his credibility assessment merely compared her
statements in her disability report with the medical record, an exercise that is equally available to the reviewing court. As a
result, the credibility determination is not entitled to the same
deference accorded assessments that are made after observing the
claimant and hearing her testimony. Cf. Frustaglia v . Health &
Human Servs., 829 F.2d 1 9 2 , 195 (1st Cir. 1987) (“The credibility
determination by the ALJ, who observed the claimant, evaluated
his demeanor, and considered how that testimony fit in with the
rest of the evidence, is entitled to deference, especially when
supported by specific findings.”). The record is mixed as to the severity of Page’s mental
impairments. Her medical records show consistent diagnoses of
anxiety, panic attacks, and agoraphobia with temporary periods of
improvement. The records also show that she did not consistently
comply with her treatment options. Contarino stated in October
of 2003 that Page did not try the relaxation techniques Contarino
suggested to reduce her anxiety and to allow her to ride in a car
in order to attend a social security hearing. Contarino also
13 stated that Page did not show motivation to overcome her anxiety.
In September of 2005, Bennett indicated on a Medical Assessment
of Ability to do Work-Related Activities (Mental) form that Page
was markedly limited in her abilities as to all but four of the
categories. Bennett, however, did not provide any medical
reasons for his assessment. McGhee testified in October of 2005 that Page could not
drive because of panic attacks, that she could not ride in a car
for any distance because of anxiety, and that she had witnessed
Page’s panic when she tried to leave the house. McGhee explained
that Page did not try Contarino’s treatment suggestions, which
included taking occasional long car trips and other de-
sensitizing activities, because Page felt Contarino was pushing
her to do things she could not d o . McGhee testified that Page’s
inability to leave the house was becoming progressively worse, despite her medication regimen.
The ALJ relied on Lynch’s consultative evaluation, done in
May of 2003, to find that Page was able to sustain focus and
concentration and was able to do college level work. He noted
Corrao’s assessment in August of 2003 that Page could not drive
but that she was able to stay focused and took good care of her
daughter. The ALJ ignored Corrao’s assessment that Page had
difficulty concentrating. The ALJ referred to Corrao’s treatment
14 note from September of 2004 that Page was “doing well” on her
anxiety medication but ignored Corrao’s notes that Page’s
insurance no longer covered a psychologist or psychiatrist. The
ALJ also noted Contarino’s negative remarks about Page but
misspelled D r . Contarino’s name and referred to her as “he,”
indicating a less than careful review of the record. The ALJ concluded that Bennett’s evaluation in September of 2005, was
entitled to little weight because his findings were contrary to
the medical evidence and because Bennett did not provide clinical
observations to support his evaluation.
Although the evaluations include a broad range of
information about Page’s abilities to do work-related functions,
Page’s ability to focus, concentrate, and care for her daughter
are not the crux of her claimed disability. Instead, the issue
in this case is whether she can or cannot leave her home because of diagnosed panic attacks and agoraphobia. Page and her mother
claim that she cannot. None of the medical evidence demonstrates
that she can leave home, but some of the evidence suggests that
she is not taking advantage of treatment options or may lack
motivation to improve her functioning ability. Therefore, the
record does not provide strong evidence either way.
The vocational expert testified that there were jobs Page
could do if her agoraphobia and anxiety allowed her to leave home
15 to work in a low stress job that required only limited contact
with the public, co-workers, and supervisors. On the other hand,
the vocational expert testified that if Page had great difficulty
leaving home and could not tolerate an extended period away from
home, she could not work. He also testified that if Page had
moderate difficulty in being able to maintain a normal workday and work week, such that she might be absent in a range up to one
third of the time, she would not be able to work.
Under the circumstances, the record lacks substantial
evidence to support the ALJ’s residual functional capacity
finding and his conclusion, based on the expert witness’s
testimony incorporating the residual functional capacity finding,
that Page could work as an office cleaner and as a chambermaid.
As a result, the ALJ’s failure to consider McGhee’s testimony was
not harmless. Lacking substantial evidence, the ALJ’s decision must be reversed.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document n o . 9 ) is granted. The claimant’s motion to
extend the time to file a response to the Commissioner’s motion
to affirm the decision (document n o . 15) is terminated. The
response was not considered in deciding the case. The motion to
16 affirm (document n o . 13) is denied.
The case is remanded under sentence four for further
administrative proceedings. ALJ Robert Klingebiel heard the case
originally and after the first remand. If the Appeals Council
again remands the case to an ALJ for further proceedings, it
shall be assigned to a different ALJ. The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________ >h » V )Joseph (Joseph A. A. DiClerico, DiClerico, Jr. Ji__ . United States District Judge March 16, 2009
cc: Karen B. Fitzmaurice, Esquire Francis M. Jackson, Esquire T. David Plourde, Esquire