Wendy Dunn v. SSA CV-99-591-B 12/10/99
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
WENDY DUNN
v. Civil No. 98-591-B
KENNETH S. APFEL. Commissioner. Social Security Administration
MEMORANDUM AND ORDER
Wendy Dunn applied for disability insurance benefits ("DIB")
under Title II and Supplemental Security Income ("SSI") under
Title XVI on October 21, 1994, alleging that she had been unable
to work due to disability since September 11, 1994.1 After the
Social Security Administration ("SSA") denied her applications
initially and on reconsideration, Dunn reguested a hearing before
an Administrative Law Judge ("ALJ"). ALJ Thomas H. Fallon held
1 Dunn filed prior applications under Title II and Title XVI on March 10, 1989. These applications were denied by the Social Security Administration and subseguently by a decision of an ALJ rendered on May 18, 1990. Dunn reguested review of the ALJ's decision by the Appeals Council, which denied her reguest on January 16, 1991. In his September 21, 1996 decision, ALJ Fallon rejected Dunn's reguest to reopen the earlier applications. See Tr. at 25-6. ("Tr." refers to the official transcript of the record submitted to the Court by the Social Security Administration in connection with this case.) Dunn has not challenged the ALJ's denial of her reguest to reopen the earlier applications. hearings on September 11, 1995 and August 20, 1996 and issued a
decision denying Dunn's application on September 21, 1996. In
his decision, the ALJ found that Dunn retained the residual
functional capacity ("RFC") to perform her past relevant work,
and therefore that she was not "disabled" under the terms of the
Social Security Act. The ALJ also found that Dunn's claimed
mental impairment was non-severe and did not limit her ability to
perform basic work activities as long as she took appropriate
medication. On July 1, 1998, the Appeals Council denied Dunn's
reguest for review, rendering the ALJ's decision the final
decision of the Commissioner of the SSA.
Dunn brings this action pursuant to Section 2 0 5 (g) of the
Social Security Act, 42 U.S.C. § 405(g) (1994), seeking review of
the Commissioner's decision denying her claim for benefits. Dunn
claims that the Commissioner's decision should be reversed
because: (1) the ALJ did not properly evaluate the evidence of
her mental impairment; (2) the ALJ did not properly evaluate her
subjective complaints of pain; and (3) the ALJ's decision that
Dunn had the RFC to perform her past relevant work was not based
on substantial evidence. Because I agree with the first of these
claims, I vacate the ALJ's decision and remand for further proceedings.2
I. STATEMENT OF FACTS3
Wendy Dunn was 28 years old when she applied for benefits.
She has an eleventh-grade education and speaks English. At
various times between 1983 to 1994, Dunn worked as a cashier, a
waitress, a restaurant shift supervisor, and a manager in a
retail pet store. See Tr. at 26, 65, 66, 81-3, 116-17, 280. She
currently lives in her home with her husband and two children.
Dunn suffers from neurofibromatosis,4 a condition that first
2 Although I render no opinion on the merits of Dunn's other claims on appeal, on remand the ALJ should thoroughly evaluate the credibility of Dunn's pain complaints in light of all the evidence that relates to any of the following factors: (1) Dunn's daily activities; (2) the location, duration, freguency, and intensity of Dunn's pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any pain medications Dunn has taken; (5) any non-medication forms of treatment for pain relief that Dunn has received; (6) any functional restrictions; and (7) any other relevant factors. See 20 C.F.R. §§ 404.1529(c) (3), 416.929(c)(3) (1999); Avery v. Secretary of Health and Human Servs., 797 F.2d 19, 29 (1st Cir. 1986) .
3 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts submitted by the parties.
4 Neurofibromatosis is "a familial condition characterized by developmental changes in the nervous system, muscles, bones, and skin and marked superficially by the formation of multiple pedunculated soft tumors . . . distributed over the entire body associated with areas of pigmentation." Dorland's Illustrated Medical Dictionary 1129 (28th ed. 1994).
-3- began to manifest itself in 1982. In April 1986, she underwent
exploratory surgery on a mass located in her right brachial
plexus region. See i d . at 168, 178, 186, 190. Dr. Merwyn Bagan,
the surgeon who performed the procedure, determined that the mass
was a neurofibroma, or tumor, that could not be removed. See i d .
at 178, 186-87, 190. At the time of the surgery, Dunn did not
suffer from any neurological deficits. Since that time, several
MRIs have revealed no enlargement of the tumor. See i d . at 180-
81, 224, 318, 326, 332, 356. Dunn has, however, complained of
pain in her right arm that worsens with activity.
In May 1989, Dunn was examined at Massachusetts General
Hospital ("MGH") by Dr. Robert L. Martuza. Dr. Martuza found
that Dunn had reasonable function of her right arm, but that she
had some weakness in the intrinsic muscles and some decrease in
pinprick sensation on her fingers. In June of the same year. Dr.
Homer Lawrence completed a residual functional capacity
assessment in connection with Dunn's prior application for
benefits.5 See i d . at 166-68. After reviewing her medical
records. Dr. Lawrence concluded that Dunn was capable of
5 The parties' joint statement of material facts states that Dr. Lawrence examined Dunn. However, the record itself suggests that Dr. Lawrence performed an evaluation based on a review of Dunn's medical records. See Tr. at 166-70.
-4- performing light work with some limitations on the use of her
right arm. He added that there had been "no 12-month closed
period of disability."
Dr. David Smith examined Dunn at MGH in February 1990. With
respect to Dunn's neurofibromatosis. Dr. Smith found that there
had been no sensory deficit progression, no progression in
symptoms, and no enlargement of the mass at the base of Dunn's
neck. Dr. Smith found that Dunn's wrist muscles were 4/5, that
her muscle groups in all other extremities were 5/5, and that
there was no drift or atrophy. Dunn's gait and station were
normal, there was no ataxia, and a sensory exam for vibration was
intact. A CT scan confirmed that there had been no progression
of the neurofibroma in Dunn's right brachial plexus area since
1984 .
Dr. Smith also noted that Dunn complained of chronic
headaches that occurred approximately two to three times per week
and often lasted more than one day at a time. See i d . at 220.
According to Dr. Smith's notes, Dunn treated these headaches with
Ibuprophen, which provided minimal relief. See i d . Dr. Smith
concluded that the headaches were stress-related. Dunn also
complained of difficulty gaining weight. See i d . Dr. Smith
noted that she weighed 87 pounds, stood 4' 11' tall, and ate three full meals a day plus high-caloric snacks.
In a report dated March 2 9 , 1994, Dr. Philip Wolf, Dunn's treating neurologist, noted that she had continued complaints of
pain in her neck, right shoulder, chest, and right leg. See i d .
at 315. Dr. Wolf noted that Dunn had attributed a recent car
accident to problems that she was experiencing with her right leg
and foot. See i d . Dr. Wolf related Dunn's complaints of
increased tingling during standing and increased difficulty with
walking or sitting in one position for too long. See i d . He
reported that both of Dunn's knees had a tendency to give out.
He also noted that Dunn took Prozac and was using Tylenol to
treat headaches about four to five times a week. See i d .
In August 1994, Dunn was involved in a second motor vehicle
accident in which she was the driver. An emergency room
physician noted that she complained of neck discomfort after the
accident, but that her motor function was normal. See i d . at
322. The physician diagnosed neck strain and discharged her;
cervical x-rays were negative.
In February 1995, Dunn was examined at the reguest of New
Hampshire Disability Determination Service ("DDS") by neurologist
Mildred LaFontaine, M.D. Dunn complained to Dr. LaFontaine of
leg pain, difficulty with her knees, and pain and weakness in her right arm. See i d . at 327. She told Dr. LaFontaine that she
always avoided lifting at work. She also complained of freguent
headaches, which she generally treated with Tylenol. See i d .
Dunn reported a history of depression, for which she had taken
Paxil6 until she lost her health insurance coverage.
Dr. LaFontaine's examination yielded the following results:
all of Dunn's joints, including her right shoulder, elbow, and
hand joints, appeared normal. See i d . at 328. Dunn had no
obvious spine deformity, her neck was supple, and she had an
"excellent" range of motion in her lumbar spine. There was some
effort-related weakness in all groups of the right upper
extremity and lower extremity in the range of 4 to 4+/5. Tone
appeared normal, gait and station were normal, and reflexes were
brisk.
Based on the examination. Dr. LaFontaine concluded that Dunn
did "not appear to have any obvious neurologic impairment despite
her neurocutaneous7 disease." I d . at 328. The doctor added, "I
am unable to demonstrate objective weakness, reflex impairment.
6 Paxil is an antidepressant medication. See Physicians' Desk Reference 2851 (52nd ed. 1998).
7 Neurocutaneous means "pertaining to the nerves and the skin; pertaining to the cutaneous nerves." Dorland's Illustrated Medical Dictionary 1128 (28th ed. 1994).
-7- or sensory loss." In March 1995, after reviewing records of
Dunn's past MRIs and related medical reports. Dr. LaFontaine
stated that the MRIs showed no involvement of the fibrous mass
with any adjacent structures, that there were no brain
abnormalities, and that there were no lumbar abnormalities. Dr.
LaFontaine concluded, "I do not see any evidence of neurological
impairment at this time," and found "no evidence that [Dunn was]
disabled from light duty work."
In May 1995, DDS sent Dunn for an orthopedic evaluation by
William Kilgus, M.D. According to Dr. Kilgus's report, Dunn
complained of occasional locking of the knee joints. Dr. Kilgus
found that knee x-rays showed no abnormalities and no evidence of
deterioration. Clinical examination revealed that Dunn was a
well-developed, well-nourished female in no acute distress. The
doctor observed that Dunn walked with a good gait and did not
list to either side. Examination of her knee joints showed a
good range of motion, only mild crepitus and no instability.
Dunn's guadriceps muscles were weakened bilaterally, and there
was no joint effusion. Dr. Kilgus diagnosed Dunn with "mild
chondromacia of the patellae bilaterally." I d . at 336. He
characterized her overall prognosis as "good," and recommended an
intensive course in physical therapy. The doctor concluded that Dunn had a full-time work capacity, but recommended that she
avoid work that required prolonged sitting or standing.
In November 1995, Dunn referred herself to the Twin Rivers
Counseling Center, where her presenting problems were " ' [m]ood
swings,'" "[r]apid and frequent shifts in affect," and
"[ i] irritability set off by 'little things.'" I d . at 338. Her
case history noted that these problems began six or seven years
earlier. Dunn reported that she lost her management position
after several of her employees complained about her behavior. A
mental status exam revealed that Dunn's mood seemed depressed
with "some neurovegetative signs of depression," such as
" [a]nhedonia8, lethargy and feelings of helplessness." I d . at
339. According to the center's intake report, Dunn's sleep and
appetite patterns were disturbed, she had a severely negative
self-image, she experienced marked shifts in affect with
irritability and explosiveness at times, she denied having
hallucinations, and she demonstrated no indications of thought
disorder. See i d . at 339-40. The center's report also stated
that Dunn seemed to have a negative self-image, that insight and
judgment were present, and that her intelligence appeared to be
8 Anhedonia is "the absence of pleasure from the performance of acts that would ordinarily be pleasurable." Stedman's Medical Dictionary 85 (25th ed. 1990) .
-9- in the average range. The report listed Dunn's coping ability
and personal resources (e.g., family, agencies, and significant
others) as strengths, and noted that she continued to care for
her children adeguately.
Based on these observations, Dunn was diagnosed as suffering
from a recurrent major depressive disorder. She paid three
additional visits to the counseling center during November 1995,
during which she reported some improvement, although she had some
trouble practicing the self-soothing technigues recommended by
the clinician.
At about the same time that she was visiting the counseling
center, Dunn was examined by psychiatrist Michael Evans, M.D., at
the reguest of DDS.9 Dunn told Dr. Evans that she was
uncomfortable sitting or standing for prolonged periods of time,
that she had been crying for no apparent reason for years, that
she was "moody," that she freguently became angry and frustrated
with people. See i d . at 343-44. Dunn also told Dr. Evans about
several occasions when she had lost her temper during the
previous summer. In the first episode, Dunn became so upset with
9 Although the parties' joint statement of material facts states that DDS reguested Dr. Evans to evaluate Dunn's mental status in December 1995, the doctor's medical report indicates that it was dictated on November 8, 1995 and transcribed on the following day. See Tr. at 342, 346.
-10- her husband during an argument that she attempted to hit him and
the family dog with her van. In the second incident, Dunn used a
knife to threaten her brother, who had come to live with the
family during the summer. Dunn informed Dr. Evans that she felt
that she was totally disabled due to chronic pain and weakness
related to her disease. The doctor noted, however, that
neurologic findings were not consistent with any progressive
disorder.
After examining Dunn, Dr. Evans noted that her affect was
"mildly sad," but that she did not show significant psychomotor
retardation or significant affective change. The doctor reported
that Dunn denied having hallucinations and suicidal or homicidal
thoughts, that she was oriented times three, that her short-term
and instantaneous memory was intact, and that she could perform
simple mathematics adeguately. Based on the examination. Dr.
Evans diagnosed dysthymia10 (Axis I); personality disorder, not
otherwise specified (Axis II); and neurofibromatosis,
nuerofibroma of the right axilla (Axis III). See i d . at 345.
10 Dysthymia is "a mood disorder characterized by depressed feeling . . . and loss of interest or pleasure in one's usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression." Dorland's Illustrated Medical Dictionary 519 (28th ed. 1994).
-11- The doctor noted that Dunn took care of her house, drove a car,
managed her children, shopped, cooked, paid her bills, and
maintained her residence, although this characterization of
Dunn's activities conflicts in some respects with those she
reported in her applications for benefits.11 Dr. Evans concluded
that Dunn could complete tasks, that she could understand and
follow simple written and oral instructions, and that she had
difficulty adapting to work situations. The doctor also noted
that Dunn was receiving no treatment at that time.
Dr. Evans completed a standard form assessing Dunn's mental
residual functional capacity. On that form, the doctor concluded
that Dunn had good ability to follow work rules, to use
judgement, to function independently, and to maintain
attention/concentration. Dunn also had good ability to
understand, remember and carry out complex instructions;
unlimited or very good ability to carry out non-complex and
simple job instructions; very good ability to maintain her
11 In her March 1989 application, Dunn stated that she cleaned and cooked meals, but that her husband did the shopping. See Tr. at 148. In an assessment of activities of daily life submitted to DDS in November 1994 as part of her current application, Dunn reported that she prepared meals; that her brother helped her with food shopping because she couldn't push the shopping cart or lift the food into or out of her car; and that various family members assisted her with household chores such as cleaning and laundry. See i d . at 284-85.
-12- personal appearance; and good ability to demonstrate reliability.
She had only fair ability, however, to relate to coworkers, to
deal with the public, to interact with supervisors, to deal with
stress at work, to behave in an emotionally stable manner, and to
relate predictably in social situations. Dr. Evans noted that
during the evaluation Dunn reported a long history of inability
to manage anger and poor tolerance of frustration, as well as
more recent difficulties with customers and fellow employees at
the pet store where she was last employed. He also noted that
Dunn had significant problems controlling her anger, had great
difficulty making social and emotional adjustments, and had
difficulty forming social relationships. See i d . at 350.
On November 22, 1995, Dunn saw Dr. Lawrence Rush, whose
speciality is internal medicine. See i d . at 352, 355. Dunn
complained to Dr. Rush of continuing right arm pain and
headaches. See i d . at 352. Dunn told Dr. Rush that in the past
her headaches occurred approximately once per week and were
treatable with Tylenol, but that during the previously year and a
half they had worsened to the point of occurring three to five
times per week. See i d . Dunn told the doctor that these more
freguent headaches were not ameliorated by Tylenol, but that they
were alleviated in some degree by Naprosyn, which she had taken
-13- when she still had health insurance. See i d . Dunn reported that
she was taking Prozac for "mood swings," and that she sometimes
had "crying attacks" and got angry or upset with her children.
I d . at 353. Dunn also complained of knee and leg pain. See i d .
Dr. Rush found Dunn's vital signs and physical examination
to be essentially unremarkable, other than the symptoms of her
neurofibromatosis and "perhaps a little bit of weakness in the
right upper extremity." I d . at 353-54. The doctor noted that
Dunn lacked access to medical care because she had no health
insurance since she stopped working in September 1994. He also
recommended that Dunn have a complete evaluation by a
neurologist. See i d . at 354.
In February 1996, Dunn was evaluated by neurologist
Alexander G. Reeves of the Hitchcock Clinic at the reguest of
DDS. Dr. Reeves found that Dunn's straight leg raising was
negative. He noted that MRIs of Dunn's spine demonstrated no
neurofibromatosis of the central axis, and that an MRI of her
brain did not demonstrate and any posterior fossa or other
masses. See i d . at 356. Dunn's motor screen was normal, her
sensory screen was normal, her reflexes were 2+ and symmetrical
in the upper extremities and 3+ and brisk at the knees and
ankles. Dr. Reeves noted that Dunn had "superficial
-14- neurofibromatosis and some involvement of her nerve trunks which
are symptomatic and, in particular, at the right brachial
plexus." Id. He concluded that her symptoms were "disabling,"
but that her neurological examination was "within normal limits."
I d . at 356-57. The doctor found that "objectively" Dunn had "no
neurological disability," but that she did have "subjective
disability . . . which is probably caused by neurofibromas
impinging on peripheral nerve branches." I d . at 357.
At the administrative hearings held before the ALJ, Dunn and
several other witnesses testified to the effects of Dunn's
alleged mental impairment on her ability to function in daily
life and on the job. At the September 11, 1995 hearing, Dunn
testified that her inability to handle stress had led to the
incidents of actual and/or threatened violence against her
husband and brother that she subseguently described to Dr. Evans.
See i d . at 86-88. Dunn also related an episode in which she had
lost control of her temper while working as a manager in a pet
store and had to leave the store. See i d . at 88-89. Dunn's
husband testified to the difficulties that Dunn's emotional or
mental problems had caused his wife both at work and at home.
See i d . at 93-95, 97-98. Cheryl Ackerson, who had worked with
Dunn at the pet store, described how Dunn's emotional outbursts
-15- and inability to handle stress had negatively effected her job
performance. See i d . at 99-103. At the second hearing, held
before the ALJ on August 20, 1996, Dunn's husband testified that
Dunn's "tremendous fear" prevented her from performing basic life
activities such as running errands. See i d . at 136.
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: (1) review the pleadings
submitted by the parties and the transcript of the administrative
record; and (2) enter a judgment affirming, modifying, or
reversing the ALJ's decision. See 42 U.S.C. § 405(g). My review
is limited in scope, however, as the ALJ's factual findings are
conclusive if they are supported by substantial evidence. See
Irlanda Ortiz v. Secretary of Health and Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (per curiam); 42 U.S.C. § 405(g). The
ALJ is responsible for settling credibility issues, drawing
inferences from the record evidence, and resolving conflicting
evidence. See Irlanda Ortiz, 955 F.2d at 769. Therefore, I must
"'uphold the [ALJ's] findings . . . if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adeguate to support [the ALJ's] conclusion.'" I d . (guoting
-16- Rodriquez v. Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981) ) .
If the ALJ has misapplied the law or has failed to provide a
fair hearing, however, deference to the ALJ's decision is not
appropriate, and remand for further development of the record may
be necessary. See Carroll v. Secretary of Health and Human
Servs., 705 F.2d 638, 644 (2d Cir. 1983); see also Slessinqer v.
Secretary of Health and Human Servs., 835 F.2d 937, 939 (1st Cir.
1987) ("The [ALJ's] conclusions of law are reviewable by this
court."). I apply these standards in reviewing Dunn's case on
appeal.
III. DISCUSSION
The Social Security Act defines "disability" for the
purposes of both Title II and Title XVI as the "inability 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 which has lasted or can be
expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A) (1994). In evaluating whether
a claimant is disabled due to a physical or mental impairment, an
ALJ's analysis is governed by a five-step seguential evaluation
-17- process.12 See 20 C.F.R. §§ 404.1520, 416.920 (1999). The
Commissioner has provided an additional evaluation process that
an ALJ must apply when, as in the present case, a claimant
alleges a mental impairment. See 20 C.F.R. §§ 404.1520a,
416.920a (1999). To determine the severity of a mental
impairment, an ALJ must rate the degree of functional loss in
four areas that the SSA has identified as essential to work: 1)
activities of daily living; 2) social functioning; 3)
concentration, persistence, or pace; and 4) deterioration or
decompensation in work or work-like settings. See 20 C.F.R. §§
404.1520a(b) (3), 416.920a(b) (3); Fiqueroa-Rodriquez v. Secretary
of Health and Human Servs., 845 F.2d 370, 372 (1st Cir. 1988)
(per curiam). Absent significant evidence to the contrary, a
claimant's mental impairment can be presumed to be non-severe if
the degree of limitation caused by the impairment is "none" or
"slight" in the first and second of these essential areas,
"never" or "seldom" in the third area, and "never" in the fourth
12 In applying this analysis, the ALJ is reguired 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 eguals 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, 416.920 (1999).
-18- area. See 20 C.F.R. §§ 404.1520a(c) (1), 416.920(c) (1); Fiqueroa-
Rodriquez , 845 F.2d at 372.
In order to determine whether a claimant is disabled, an ALJ
must consider and evaluate all evidence, whether objective or
subjective, that is relevant to the claim. See Cotter v. Harris,
642 F.2d 700, 704 (3d Cir. 1981); Parker v. Harris, 626 F.2d 225,
231 (2d Cir. 1980). The SSA's regulations define "evidence" as
"anything [the claimant] or anyone else submits [to SSA] or that
[SSA] obtain[s] that relates to [the] claim." 20 C.F.R. §§
404.1512(b), 416.912(b) (1999). Relevant evidence may include,
but is not limited to, the following types of information:
objective medical evidence; other evidence from medical sources;
statements about the claimant's impairment(s ) made by the
claimant or others, including testimony offered at administrative
hearings; and information from other sources, such as public and
private social welfare agencies, non-medical sources, and other
practitioners. See id.; see also 20 C.F.R. §§ 404.1513(e),
404.1528(a), 416.913(e), 416.928(a) (1999). If any of the
evidence in a case record is inconsistent, the ALJ must weigh the
conflicting evidence and decide which evidence to credit. See 20
C.F.R. §§ 404.1527(c) (2) , 416.927(c)(2) (1999).
In the present case, the ALJ's written decision indicates
-19- that he failed to consider and weigh the full range of evidence
relevant to Dunn's alleged mental impairment. The ALJ's brief
discussion of Dunn's mental impairment refers only to the
psychiatric consultative evaluation performed by Dr. Evans. See
Tr. at 27. The decision makes no mention of the other relevant
evidence of mental impairment contained in the case record, such
as the records from the Twin Rivers Counseling Center and the
testimony offered at the administrative hearings by Dunn, her
husband, and her coworker, in which the witnesses described
Dunn's mental impairment and its negative effects on her ability
to function.
Under SSA regulations, both the counseling center's records
and the hearing testimony constitute relevant, non-medical
evidence of mental impairment that the ALJ should have
considered. While a community counseling center does not gualify
as an "acceptable medical source" under the regulations, see 20
C.F.R. §§ 404.1513(a), 416.913(a), the SSA has expressly provided
that information "provided by programs such as community health
centers" is relevant documentation of a claimant's ability to
function and to tolerate stress. 20 C.F.R. P t . 404, Subpt. P,
A p p . 1, at 12.OOD. In this case, the center's evaluation of
Dunn's mental status was especially relevant because Dunn visited
-20- the center multiple times and because it was the only source that
provided treatment, as distinguished from an evaluation, for
Dunn's alleged mental impairment. The regulations also provide
that the effects of a claimed mental impairment may be
demonstrated by information provided by family members or others
"who have knowledge of an individual's functioning." Id. The
testimony offered by Dunn's husband and co-worker clearly
constitutes such information.13 Finally, while Dunn's subjective
testimony that she suffered symptoms of mental impairment is not
sufficient in itself to establish the existence of a mental
impairment, it is probative evidence that the ALJ should have
assessed for credibility. See 20 C.F.R. §§ 404.1528(a),
416.92 8(a); 20 C.F.R. Pt. 404, Subpt. P, App. 1, at 12.0OB; Gray
v. Heckler, 760 F.2d 369, 374 (1st Cir. 1985) (per curiam);
Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975) (per
curiam).
While the ALJ was free to discredit the evidence provided by
13 An SSA Program Policy Statement, which deals with the assessment of residual functional capacity for claimants with mental impairments, similarly provides that "[t]o arrive at an overall assessment of the effects of mental impairment, relevant, reliable information, obtained from third party sources such as social workers, . . . family members, and staff members of . . . mental health centers, and community centers, may be valuable." SSR 85-16, 1985 WL 56855, at *4 (1985) (emphasis added).
-21- the counseling center and by witnesses at the hearings, he was
not free to "simply ignore, as he did here, the 'body of evidence
opposed to [his] view.'" Diaz v. Secretary of Health and Human
Servs., 791 F. Supp. 905, 912 (D.P.R. 1992) (guoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); see also Pedis
v. Chater, 956 F. Supp. 45, 51 (D. Mass. 1997) (same). An ALJ is
under no obligation "to expressly refer to each document in the
record, piece-by-piece." Rodriguez v. Secretary of Health and
Human Servs., 915 F.2d 1557, No. 90-1039, 1990 WL 152336, at *1
(1st Cir. Sept. 11, 1990) (table, text available on Westlaw); see
also NLRB v. Beverly Enterprises-Massachusetts, Inc., 174 F.3d
13, 26 (1st Cir. 1999) (enforcing administrative order in labor
context); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)
("[W]e are unwilling to reguire an ALJ explicitly to reconcile
every conflicting shred of medical testimony . . . ."). However,
for a reviewing court to be satisfied that an ALJ's finding was
supported by substantial evidence, that finding "'must take into
account whatever in the record fairly detracts from its weight.'"
Diaz, 791 F. Supp. at 912 (guoting Universal Camera, 340 U.S. at
488). In the present case, because the ALJ's decision failed to
even mention -- let alone evaluate -- evidence that may have
favored Dunn's claim of mental impairment, it is impossible to
-22- determine whether this evidence was implicitly discredited or
instead was simply overlooked.14 See Smith v. Heckler, 735 F.2d
312, 317 (8th Cir. 1984); Cotter, 642 F.2d at 705; Nquven v.
Callahan, 997 F. Supp. 179, 182 (D. Mass. 1998); see also
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.
1988) (concluding that ALJ's decision was "fatally undermine[d]"
by ALJ's failure to mention and evaluate testimony by claimant
and family member).
In addition, the ALJ's decision affirmatively
mischaracterized the evidence of mental impairment contained in
the record. The decision stated that "[t]here is no evidence in
the case record of a psychiatric impairment other than
dysthymia." Tr. at 27. This statement was inaccurate in that it
denied the existence of evidence, such as the report from the
Twin Rivers Counseling Center, suggesting that Dunn suffered from
a major depressive disorder. The ALJ may not selectively extract
14 The ALJ also found that "Dunn has not deteriorated or decompensated in a work or work-like setting," Tr. at 27, without acknowledging or explicitly discrediting testimony, offered at the September 11, 1995 administrative hearing, in which Dunn was described as suffering from decompensation in the work setting. See i d . at 88-89, 101-03. Once again, while the ALJ may choose to discredit such testimony, the decision makes it impossible to determine whether this evidence was ignored or weighed and found not to be credible.
-23- certain pieces of evidence from the record while simultaneously
ignoring other, potentially contradictory, pieces of evidence.
See Nquven, 997 F. Supp. at 182; Miller v. Bowen, 703 F. Supp.
885, 889 (D. Kan. 1988); Claassen v. Heckler, 600 F. Supp. 1507,
1511 (D. Kan. 1985); Alvarez v. Califano, 483 F. Supp. 1284,
1285-86 (E.D. Pa. 1980) .
The ALJ's apparent failure to weigh other relevant evidence
of mental impairment is particularly troubling in this case
because the ALJ found that Dunn's mental impairment was non-
severe at the second step of the five-step seguential evaluation
process. See 20 C.F.R. §§ 404.1520(c), 416.920(c). An
impairment should be considered non-severe only if it does not
significantly limit a claimant's physical or mental ability to do
basic work activities. See McDonald v. Secretary of Health and
Human Servs., 795 F.2d 1118, 1121 n.3, 1124-25 (1st Cir. 1986);
20 C.F.R. §§ 404.1521(a), 416.921(a). Because the severity step
is essentially a threshold reguirement devised to screen out
insubstantial claims, see Bowen v. Yuckert, 482 U.S. 137, 153
(1987); McDonald, 795 F.2d at 1124-25, an ALJ should take special
care to evaluate all relevant evidence before finding an
impairment nonsevere. In this case, I cannot ignore the
possibility that the ALJ's failure to accurately assess all
-24- relevant evidence of mental impairment at the severity stage led
to a failure to properly consider the total limiting effects of
Dunn's mental and physical impairments when determining her RFC
and when deciding at step 4 that Dunn could perform her past
relevant work. See 20 C.F.R. §§ 404.1523, 404.1545(e), 416.923,
416.945(e) (1999) .
Finally, the ALJ's discussion of Dunn's mental impairment
suffers from an internal contradiction that in itself indicates
the need for further explication. The decision states that Dunn
"has not undergone treatment" for what the ALJ concluded was a
"dysthymic disorder." Tr. at 27. At the same time, however, the
ALJ states that in the past Dunn has taken Prozac and Valium to
successfully control her dysthymia. See Tr. at 27. Although the
record contains references to Dunn's use of Prozac and other
medications for depression, see i d . at 286, 315, 327, 352, it
does not provide a clear indication of when the medications were
prescribed, who proscribed them, or whether they were successful
in alleviating her symptoms. On remand, the ALJ may choose to
seek additional evidence to address these issues.
IV. CONCLUSION
The Social Security Act charges the ALJ with responsibility
for judging credibility and resolving conflicting evidence. See
-25- Irlanda Ortiz, 955 F.2d at 769. While an ALJ's findings are
conclusive when supported by substantial evidence, they are not
conclusive "when derived by ignoring evidence." Nguyen v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam). When an
ALJ "fail[s] to base his decision on the entire administrative
record and evidence as a whole," there is good cause for remand.
Ortiz v. Apfel, 55 F. Supp.2d 96, 100 (D.P.R. 1999); see also
Nguven, 997 F. Supp. at 182-83; Crosby v. Heckler, 638 F. Supp.
383, 385 (D. Mass. 1985). Because the ALJ in this case reached
his conclusion by ignoring and selectively extracting relevant
evidence, and because his decision contains unexplained
contradictions, I am unable to conclude that the decision is
supported by substantial evidence. Accordingly, I vacate the
ALJ's decision and remand this case with instructions that, in
reaching a new decision, the ALJ consider all evidence relevant
to Dunn's mental impairment, developing additional evidence if he
deems supplementation of the record to be necessary.
SO ORDERED.
Paul Barbadoro Chief Judge
December 10, 1999
cc: Raymond Kelly, Esg.
-26- David Broderick, Esq.
-27-