Rivard v. SSA CV-06-54-PB 10/17/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M . Rivard
v. Case N o . 06-cv-054-PB Opinion N o . 2006 DNH 119 Jo Anne B . Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Jeffrey Rivard challenges the Commissioner of Social
Security’s determination that he is not entitled to either
disability insurance benefits (“DIB”) or supplemental security
income (“SSI”) benefits. He argues, among other things, that the
Administrative Law Judge (“ALJ” erred by improperly ignoring
significant evidence supporting his claim that he cannot return
to his past relevant work as a janitor.1 For the reasons that
1 Rivard makes several additional arguments, but I need not address them now because this ground alone necessitates a remand. I will, however, briefly mention them in order to direct the ALJ’s attention to these issues during further proceedings. First, Rivard argues that the ALJ erred in finding that his previous job as a janitor constituted “past relevant work” within the meaning of the Regulations. Specifically, he contends that the record lacked sufficient evidence to support such a finding and that the ALJ failed to resolve an inconsistency between the Vocational Expert’s (“VE”) characterization of the skill level of follow, I agree and remand this case for further consideration
consistent with this order.
I. BACKGROUND2
A. Procedural History
Jeffrey Rivard filed for Disability Insurance benefits and
Supplemental Security Income benefits pursuant to Titles II and
XVI of the Social Security Act (“SSA”) on February 1 1 , 2003 (Tr.
68-70, 259-261), with a protective filing date of January 2 4 ,
2003 (Tr. 6 7 ) . His date last insured was June 3 0 , 2004. (Tr.
7 1 ) . He claimed that he had been unable to work since October 3 1 ,
2002 due to problems stemming from bipolar disorder and
schizophrenia. (Tr. 6 8 , 7 8 ) . His application was denied both
Rivard’s janitor job and the skill levels of the janitor positions listed in the Dictionary of Occupational Titles (“DOT”). Alternatively, Rivard argues that the ALJ should have disregarded the janitor job as an “unsuccessful work attempt” that would not constitute past relevant work within the meaning of the Regulations. Rivard also contends that the ALJ’s step four analysis was insufficient because he did not make the required specific findings of fact regarding Rivard’s RFC, the physical and mental demands of his past work, and the fit between the two. 2 Unless otherwise noted, the background facts are taken from the Joint Statement of Material Facts (Doc. 10) submitted by the parties pursuant to Local Rule 9.
-2- initially and on reconsideration. (Tr. 35-41, 46-49).
Rivard then requested a hearing before an Administrative Law
Judge (ALJ). (Tr. 5 3 ) . The hearing convened on March 3 , 2005
(Tr. 2 7 1 ) . The ALJ issued his decision on April 1 3 , 2005, ruling
that Plaintiff was not disabled within the meaning of the Act.
(Tr. 21-32). Rivard subsequently requested that the Appeals
Council review the ALJ’s decision. (Tr. 18-20). The Appeals
Council declined to do so (Tr. 6 - 9 ) , thus making the ALJ’s
decision the final agency determination. The case therefore
became ripe for judicial review.
B. Rivard’s Educational, Vocational, and Medical History
Rivard began having behavioral problems during his junior
high school years. (Tr. 2 2 2 ) . He was involved with a gang and
was frequently violent and aggressive. (Tr. 222-226).
Rivard was psychiatrically hospitalized for the first time
in November 1997, at age 1 7 , because of concerns regarding his
violent behavior. (Tr. 136-153, 239-243). After being
discharged in March 1998, there were lingering concerns about his
potential for violent behavior, but it was noted that he was
calm, sociable, and in control of his behavior while in the
hospital. (Tr. 2 4 1 , 2 4 3 ) . It was also noted that his observed
-3- behavior clashed with his self-reports of violent behavior,
leading to the conclusion that Plaintiff may have been
confabulating to some extent. (Tr. 236, 2 4 1 , 2 4 3 ) .
Rivard was hospitalized again from May 2 7 , 1998 to June 1 7 ,
1998 and from March 4 , 1999 to March 1 5 , 1999. (Tr. 2 2 7 ) . He was
very manageable and in control of his behavior during both
hospitalizations. (Tr. 2 3 0 , 2 3 6 ) . Medical notes from January
2003 reflect that he complained of being irritated, depressed,
and anxious. (Tr. 189, 1 9 4 ) . He stated that his then girlfriend
had broken up with him because he had been verbally abusive and
had punched and dented the refrigerator and a table. (Tr. 1 8 9 ) .
Each had a restraining order out against the other. Id. Rivard
was not taking any medications. (Tr. 1 9 2 ) . Rivard’s affect was
flat, but he was cooperative, and his thought processes were
clear and coherent. (Tr. 1 9 4 ) . His judgment was impaired, and
his insight was minimal. (Tr. 1 9 4 ) . His memory was intact. Id.
In February 2003, Rivard reported that he lived in a shelter
for homeless men. (Tr. 9 5 , 1 0 4 ) . He prepared all his own meals
and went grocery shopping once per week. (Tr. 95-96). He
watched TV and read about one book per month. (Tr. 96-97). He
stated he could handle his own money. (Tr. 9 6 ) . He reported
-4- that he was capable of working, but that he felt that Social
Security benefits would help him to support himself. (Tr. 9 9 ) .
Rivard underwent a psychiatric evaluation on April 1 5 , 2003.
(Tr. 186-188). He still had some mood instability, but it was
noted that medications had helped. Id. He was personable, and
his affect was good with no lability. Id. He exhibited no
obvious evidence of psychosis, and his insight and judgement were
good. Id. Rivard was subsequently hospitalized for a one night
in May 2003. (Tr. 162-163). He complained of being overwhelmed
and depressed and claimed to be suicidal. Id. He was using
drugs and alcohol at the time, and it was noted that he had been
diagnosed with bipolar disorder.3 Id. While in the hospital,
Rivard maintained good behavioral control, was engaged and
cooperative, ate and slept well, and participated in most patient
activities. (Tr. 163, 1 6 7 ) . He was discharged with a Global
Assessment of Functioning (GAF) Score of 6 0 . (Tr. 163). 4 In
3 Bipolar Disorder - a mood disorder characterized by the occurrence of one or more manic episodes; in almost all cases in one or more major depressive episodes will eventually occur. Dorland's Illustrated Medical Dictionary, 492 (28th ed. 1994). 4 See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) (GAF score of 51-60 reflects moderate symptoms).
-5- June 2003, Rivard began living in a residential treatment
program, which provided needed structure in his life. (Tr.
110-111). He was then working up to 25 hours per week at Burger
King. Id. He reported that he had problems concentrating, that
he had trouble with insubordination and working with people, and
that his mood swings caused him to behave in ways deemed
unacceptable to the public. (Tr. 121-125). A third party
reported in June 2003, that Rivard spent his days working at
Burger King, hanging out with his friends, and watching TV. (Tr.
112). He had no problems with his personal care and needed no
help taking his medications. (Tr. 1 1 3 ) . He prepared his own
meals, did laundry and chores, and was able to pay bills, count
change, use money orders, shop, and travel. (Tr. 1 1 5 ) . He
visited with family and friends. (Tr. 1 1 6 ) . His behavior was
noted to be that “of a 20 year old,” meaning that he sometimes
aggravated his house mates. (Tr. 1 1 6 ) . He could pay attention
for one hour or longer. (Tr. 1 1 7 ) . He finished what he started
and was able to follow written and spoken instructions. (Tr.
118). He did have problems handling stress, but had not been
observed behaving in any unusual manner. (Tr. 1 1 8 ) . D r . Jeremy
Spiegel noted in June 2003, that Rivard had been doing pretty
-6- well. (Tr. 1 8 5 ) . He was pleasant and calm. Id. His thoughts
were linear without psychosis. Id. He had no suicidal or
homicidal ideation. Id.
Rivard was subsequently hospitalized in February 2004, for
four days after having stopped his medications. (Tr. 2 5 4 ) . He
thereafter saw D r . Ruth Frydman in July 2004. (Tr. 254- 2 5 6 ) .
He told D r . Frydman that he had been sober for four to six
months, that his mood was fine, and that his concentration had
been good. Id. He denied hallucinations, but did report to
feeling sometimes as though he was being poked or brushed. Id.
He lived with his parents after leaving the hospital and later
moved to a residence on Nye Street. Id. He reported that he had
run into legal problems because of stealing and that he had to
serve jail time. (Tr. 2 5 4 ) . He also reported that he had
violated the restraining order that his ex-girlfriend had taken
out against him by visiting their child. (Tr. 2 5 5 ) . This had
also resulted in a stint in jail. Id. He had been on probation
for one year. (Tr. 2 5 5 ) . D r . Frydman noted that Rivard’s
behavior was appropriate except for his reluctance to take
certain medications. (Tr. 254-256). D r . Frydman noted that
Rivard continued to have problems with mood swings and concurrent
-7- psychotic symptoms despite sobriety. Id. She noted, however,
that his thoughts were clear and logical and that he had moderate
insight and judgment. Id. In August 2004, Rivard told D r .
Frydman that he had been kicked out of the Nye Street residence
and that he had moved back in with his parents. (Tr. 2 5 2 ) . His
mood had been fairly stable. Id. He reported that he had stolen
some items recently, but that he wanted to stop that behavior, as
he was attempting to obtain a degree. Id. He was cooperative
and appropriate, and his thoughts were clear and logical. Id.
He visited D r . Brendan Kirby in September 2004. (Tr. 250-251).
Dr. Kirby noted that Rivard was unemployed, but not disabled.
(Tr. 2 5 0 ) . He told D r . Kirby that he had become remorseful about
his past aggressive behavior and stated that he was no longer
abusing substances. (Tr. 250-251). Rivard behaved appropriately
and cooperatively. Id. There was no evidence of hypomania,
mania, or depression. Id. His concentration and attention span
were normal, his judgment was intact, and his insight into his
illness was fair. Id. There was no evidence of psychosis and
Rivard was felt to be safe to himself and others. (Tr. 250-251).
Rivard saw D r . Kirby again in October 2004. (Tr. 2 4 8 ) . He
reported that he was “all right.” (Tr. 2 4 8 ) . He behaved
-8- appropriately and cooperatively and concentrated and attended
well. Id. His substance abuse problem was in early partial
remission. Id.
C. Functional Capacity Evaluations
On September 4 , 2003, a Disability Determination Services
(DDS) physician reviewed Rivard’s records and concluded that he
suffered from bipolar disorder and anti-social personality
disorder. (Tr. 2 0 1 , 2 0 5 ) . He indicated that, because of these
disorders, Rivard experienced a moderate degree of limitation in
terms of maintaining social functioning and maintaining
concentration, persistence, and pace. (Tr. 198-211). Based on
these conclusions, he determined that an RFC Assessment was
necessary. (Tr. 1 9 8 ) . The physician conducted an RFC Assessment
on the same day and concluded that when Rivard was not abusing
drugs or alcohol he was capable of performing simple 1-3 step
tasks, that he could concentrate well enough to complete such
simple tasks, that he had social skills, but worked best alone,
and that he could adapt to simple changes. (Tr. 214-215). The
physician also indicated that Rivard suffered from moderate
limitations with respect to the following abilities: the ability
to understand and remember detailed instructions, the ability to
-9- carry out detailed instructions, the ability to maintain
attention and concentration for extended periods, the ability to
perform activities within a schedule, to maintain regular
attendance and be punctual within customary tolerances, the
ability to work in coordination with or proximity to others
without being distracted by them, the ability to get along with
coworkers or peers without distracting them or exhibiting
behavioral extremes, the ability to maintain socially appropriate
behavior and to adhere to basic standards of neatness and
cleanliness, the ability to respond appropriately to changes in
the work setting, and the ability to set realistic goals or make
plans independently of others. (Tr. 212-213). This assessment
was affirmed by a second DDS physician on September 2 6 , 2003.
(Tr. 2 1 6 ) .
D. Rivard’s Hearing Testimony
Rivard, who was 22 years old at the time of the ALJ’s
decision (Tr. 2 9 , 6 8 ) , testified that in approximately the middle
of eighth grade he transferred to an alternative school program
for students with behavioral problems. (Tr. 2 7 5 ) . He finished
the 10th grade in the alternative program and subsequently
obtained his GED. (Tr. 280-281). He began having problems with
-10- the legal system as a juvenile. (Tr. 2 8 0 ) . He admitted to
having had problems with anger and rage and getting along with
people since the seventh or eighth grade. (Tr. 2 8 4 ) . He also
admitted to a history of abusing drugs, but stated that he had
been clean since January 2004. (Tr. 2 9 1 ) . He denied having any
problems with alcohol. (Tr. 2 9 2 ) . He stated he had been
hospitalized for psychiatric problems several times, the last
time being in February 2004. (Tr. 306-307). He had a diagnosis
of bipolar disorder. (Tr. 2 9 2 ) . Medications helped control his
symptoms. (Tr. 295-296, 3 0 1 ) . He testified that he could
probably obtain a job, but that he did not think he could keep
one because of his problems with mood swings, paranoia, and
sleep. (Tr. 3 0 5 ) . He maintained that he sometimes got “cocky”
with authority figures, but that his primary problem was working
with co-workers. (Tr. 2 8 9 ) . He had previously worked in
positions in the food industry, a blanket factory, a laundry
facility, and as a janitor. (Tr. 283- 289, 3 0 9 ) . The position
he held the longest was for nine months at Burger King. (Tr.
307). He got fired from all but one position—the one at the
laundry—which he quit because he didn’t care for i t . (Tr.
283-288, 3 1 2 ) . He was fired for various reasons ranging from
-11- showing up late, mocking his manager, and allegedly being in
possession of drugs. (Tr. 283-288, 3 1 2 ) . He testified that he
regularly missed at least one day of work per month and was late
often. (Tr. 313-314). After being warned, however, he did not
miss work or show up late at the blanket factory because the job
paid $14 per hour and he did not want to lose i t . (Tr.
314). At the time of the hearing, Rivard lived with a
girlfriend. (Tr. 3 0 2 ) . He performed chores around the house and
occasionally helped out at his mother’s barber shop. (Tr. 3 0 2 ,
304). He had a two and one-half year old child that he did not
see. (Tr. 3 0 3 ) .
E. Vocational Expert Testimony
The VE testified that Rivard’s past relevant work consisted
of fast food and janitorial work, which was light and unskilled
as performed. (Tr. 7 9 , 87-91, 3 0 9 ) . Upon questioning by the
ALJ, the VE stated that janitorial work would be a good placement
for an individual who had trouble dealing with coworkers and/or
supervisors. (Tr. 3 1 0 ) . The VE further testified that if
Rivard’s rate of absenteeism is a day a month or greater, any
potential occupational base would likely be abolished. (Tr. 311-
312). In response to a hypothetical question posed by Rivard’s
-12- attorney, the VE testified that the cumulative effect of several
less than satisfactory abilities indicated in Rivard’s medical
records would abolish any occupational base. (Tr. 3 1 6 ) .
F. The ALJ’s Decision
The ALJ followed the five-step sequential evaluation
process, pursuant to 20 C.F.R. §§ 404.1520 and 416.920, to
determine whether Rivard was disabled.5 (Tr. 21-32). At the
first step, the ALJ found that Rivard had not engaged in
substantial gainful activity since his alleged onset date. (Tr.
2 7 , 28 at Finding 2 ) . At steps two and three, he found that
Rivard’s bipolar disorder and history of drug and alcohol abuse
were severe impairments, but that they did not meet or equal a
listed impairment under Appendix 1 , Subpart P of Regulations N o .
5 The claimant has the burden at the first four steps to show that: (1) the claimant is not engaged in substantial gainful activity; and (2) the claimant has a severe impairment; and (3) the impairment meets or equals a specific impairment listed in the SSA regulations; or (4) the impairment prevents or prevented the claimant from performing past relevant work. Id. at § 404.1520(a)(4)(i)-(iv). At step five, the burden shifts to the Commissioner to show "that there are jobs in the national economy that [the] claimant can perform." Heggarty v . Sullivan, 947 F.2d 9 9 0 , 995 (1st Cir. 1991). The ALJ's conclusions at steps four and five are informed by his assessment of the claimant's residual functional capacity (“RFC”), which is a description of the kind of work that the claimant is able to perform despite her impairments. 20 C.F.R. §§ 404.1520, 404.1545.
-13- 4. (Tr. 2 7 , 28 at Findings 3 and 4 ) . The ALJ further determined
that Rivard retained the Residual Functional Capacity (RFC) to
perform simple, unskilled, repetitive work at all levels of
exertion that did not involve extensive public contact. (Tr. 28
at Finding 6 ) . At step four, the ALJ found, based on the VE
testimony, that Rivard could perform his past relevant work as a
janitor (Tr. 28 at Findings 7 - 8 ) , and that he was not under a
disability at any time relevant to his decision. (Tr. 28 at
Finding 9 ) .
II. STANDARD OF REVIEW
Pursuant to 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 ALJ's decision. The ALJ's factual findings are
conclusive if they are supported by substantial evidence. 42
U.S.C. § 405(g); Ortiz v . Sec'y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991). Substantial evidence is that
which “‘a reasonable mind, reviewing the evidence in the record
as a whole, could accept . . . as adequate to support [the]
conclusion.’” Id. (quoting Rodriguez v . Sec'y of Health and
-14- Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). Thus, the
ALJ’s decision is supported by substantial evidence if it is
reasonable. See id.
The ALJ is responsible for settling credibility issues,
drawing inferences from the record evidence, and resolving
conflicting evidence. Id. If the ALJ’s findings as to these
matters are reasonable, I must uphold them “even if the record
arguably could justify a different conclusion.” Tsarelka v .
Sec'y of Health & Human Servs., 842 F.2d 529, 535 (1st Cir.
1988). On the other hand, the ALJ’s findings are not conclusive
if they were “derived by ignoring evidence, misapplying the law,
or judging matters entrusted to experts.” Nguyen v . Chater, 172
F.3d 3 1 , 35 (1st Cir. 1999). I apply these standards to the
arguments Rivard raises in his appeal.
III. ANALYSIS
In this case, the ALJ determined that Rivard was not
entitled to benefits because his impairments did not prevent him
from returning to his past work as a janitor. He first found
that Rivard’s RFC allowed him to perform simple, unskilled,
repetitive work that did not involve extensive public contact.
-15- Then, based on the testimony of the VE that a janitorial job
“seems to be a pretty good place to put folks who have trouble
dealing with coworkers”6 (Tr. 3 1 0 ) , the ALJ reasoned that
Rivard’s past relevant work as a janitor did not require the
performance of work-related activities precluded by his RFC.
Therefore, the ALJ determined, Rivard’s impairments did not
prevent him from performing his past relevant work, so he was not
disabled.
Rivard argues that the ALJ erred by ignoring important
portions of the record. First, Rivard claims that the ALJ
ignored his testimony that he “missed more than one day a month
regularly” in previous employment situations. (Tr. 3 1 4 ) .
Earlier in the proceeding, the VE testified that “if [Rivard’s]
rate of absenteeism is a day a month or greater, [which would
constitute an] essentially excessive rate of absenteesim, then I
think that would abolish any potential occupational base in the
6 The testimony of the VE came in response to the following hypothetical question posed by the ALJ: “Mr. Newman, the claimant has a GED education at age 2 2 . He has described to us significant problems dealing with people in general, particularly coworkers, seems to have lead to his downfall on several of these job attempts. If you were trying to place such a person in some sort of an occupation, would you put him in any of the jobs he’s had in the past?”
-16- scheme of occupations.” (Tr. 3 1 2 ) . In light of this expert
testimony, the evidence in the record that Rivard routinely
missed more than one day of work per month throughout his
employment history clearly constitutes probative evidence in
support of Rivard’s claim. Thus, it should have been considered
by the ALJ. See Nguyen, 172 F.3d at 3 5 .
Additionally, Rivard contends that the ALJ ignored important
portions of the Psychiatric Review Technique (“PRT”) form (Tr.
198-211) and the Residual Functional Capacity Assessment (“RFCA”)
form (TR. 212-215). These forms indicate that Rivard exhibited
moderate limitations with respect to several areas of
functionality.7 This evidence is particularly probative in light
of the VE’s response to following hypothetical question posed by
Rivard’s attorney:
I’d like you to assume the following, and I’m going to base it on Exhibits F6 and F 7 8 , that[] this claimant
7 These limitations are listed specifically in the excerpt of hearing testimony that follows. 8 Exhibits F6 and F 7 , respectively, are the PRT and RFCA forms referenced above. Both forms were completed by DDS physicians. Thus, the inputs used by Rivard’s attorney in the hypothetical are supported by medical evidence in the record. See Arocho v . Sec’y of Health & Human Servs., 670 F.2d 3 7 4 , 375 (1st Cir. 1982). (reasoning that for a VE’s “answer to a hypothetical question to be relevant, the inputs into that hypothetical must
-17- would have the following limitations. Potentially mental health limitations by the DDS physician from this case said he would have moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; he would have moderate difficulties in his ability to understand and remember detailed instructions, and to carry out those detailed instructions; moderate problems in his ability to maintain attention and concentration for extended periods, to perform activities within a schedule, to maintain regular attendance, to be punctual within customary tolerances; and moderate difficulties in his ability to work in coordination with or in proximity to others without being distracted by them; and finally, moderate difficulty in maintaining–in completing a normal workday and workweek without interruptions from his psychologically based symptoms, and his ability to accept instructions and to respond appropriately to criticism in the work setting. If the claimant had these limitations, do you think he could do any of this part relevant work?
When the VE expressed confusion as to the proper definition of
“moderate,”9 Rivard’s attorney described the term essentially as
a “less than satisfactory” level of functionality with respect to
a given ability for “one-third of the day.” (Tr. 3 1 6 ) . After
accepting this definition for the purposes of the question, the
VE testified:
correspond to conclusions that are supported by the outputs from the medical authorities”). 9 The term “moderate” is not defined in the medical forms at issue or in the Regulations.
-18- I think that this is one of those cases where the cumulative effect would really come into play. The cumulative effect on all of these less than satisfactory abilities on an occasional basis, I think probably would abolish any occupational base, if that’s your definition of moderate. (Tr. 3 1 6 ) .
Given the VE’s testimony that a given combination of moderate
limitations could “abolish any occupational base,” the portion of
Rivard’s medical records indicating that he exhibited that very
combination of limitations constitutes probative evidence that
the ALJ should have considered. See Nguyen, 172 F.3d at 3 5 .
Because the ALJ's decision completely failed to mention
either Rivard’s testimony with respect to his chronic absenteeism
or the medical records indicating that Rivard suffered from
moderate functional limitations, it is impossible to determine
whether this evidence was considered and implicitly discredited
or instead was simply ignored. See Cotter v . Harris, 642 F.2d
700, 705 (3d Cir. 1981). At the very least, these portions of
the testimony and the medical records constitute evidence that an
ALJ should consider and evaluate in the course of reaching a
decision. See 20 C.F.R. §§ 404.1520(a) (“We consider all
evidence in your case record when we make a determination or
decision whether you are disabled.”), 404.1512(b) (defining
“evidence” to include anything that a claimant or “anyone else
-19- submits to [the SSA] that relates to” a claim). Although the ALJ
could have discredited Rivard’s testimony or rejected the
definition of “moderate” posed by Rivard’s counsel, he was
nonetheless obligated to explain his reasons for doing s o . See
Cotter, 642 F.2d at 707. Accordingly, the ALJ’s decision was not
based on substantial evidence.
IV. CONCLUSION
For these reasons I grant Rivard’s motion for an order
reversing the decision of the Commissioner (doc. n o . 8 ) and deny
the Commissioner’s motion for an order affirming the decision of
the Commissioner (doc. n o . 9 ) . The ALJ’s decision is vacated and
remanded for further development of the record in line with this
opinion.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 1 7 , 2006
cc: Francis Jackson, Esq. Karen Nesbitt, Esq. David Broderick, Esq.
-20-