Palermo v . SSA CV-02-259-M 07/16/03
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Erica L . Palermo,
Claimant
v. Civil N o . 02-259-M
Opinion N o . 2003 DNH 122
JoAnne B . Barnhart,
Commissioner, Social Security
Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Erica L . Palermo,
moves to reverse the Commissioner’s decision denying her
application for Social Security disability insurance benefits,
under Title II of the Social Security Act,
42 U.S.C. § 423. The
Commissioner, in turn, moves for an order affirming her decision.
For the reasons given below, the matter is remanded to the
Administrative Law Judge (“ALJ”) for further proceedings
consistent with this opinion.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions). However, the court “must uphold a denial of social
security disability benefits unless ‘the [Commissioner] has
committed a legal or factual error in evaluating a particular
claim.’” Manso-Pizarro v . Sec’y of HHS,
76 F.3d 1 5 , 16 (1st Cir.
1996) (quoting Sullivan v . Hudson,
490 U.S. 8 7 7 , 885 (1989)).
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 2 ) , which is part of the court’s record.
The facts included in that statement are not recited here, en
masse, but will be referred to as necessary.
Claimant’s insured status expired on September 3 0 , 1994.
On April 2 7 , 2000, she filed an application for Social Security
disability insurance benefits, claiming that she had become
2
disabled, as a result of bipolar disorder, on September 2 8 , 1990.
During the consideration of claimant’s application, a Psychiatric
Review Technique form (“PTRF”) was completed. (Administrative
Transcript (“Tr.) at 223-231.) According to the evaluator who
completed the PTRF, claimant suffered from bipolar syndrome, an
affective disorder. However, the evaluator determined that there
was insufficient evidence to evaluate the functional limitations
that would have defined the severity of claimant’s impairment.
On September 1 1 , 2001, a hearing was held before an ALJ. In
the body of his decision, dated November 2 9 , 2001, the ALJ
discussed the medical evidence in the record at some length and
in some detail. But he did not mention the Psychiatric Review
Technique form, nor did he frame his analysis in terms of the
technique for evaluating mental impairments set out in 20 C.F.R.
§ 404.1520a. The ALJ’s decision concludes with a set of formal
findings, including the following:
3. The medical evidence establishes that on the date
her insured status expired the claimant had
bipolar disorder, an impairment which is severe
but which does not meet or equal the criteria of
any of the impairments listed in Appendix 1 ,
Subpart P, Regulations N o . 4 .
3
(Tr. at 24-25.)
Discussion
While claimant’s brief is not as clear as it might be, 1 she
appears to argue that the ALJ’s decision should be reversed, and
she should be awarded benefits, because the ALJ: ( 1 ) determined,
incorrectly, that her condition did not meet or equal any listed
impairment; (2) found, without substantial evidence, that
claimant had the residual functional capacity to perform jobs
that involved occasional interaction (up to two and one half
hours per day) with co-workers; (3) determined, incorrectly, that
claimant was capable of performing the jobs of office helper and
cleaner, when both involved production quotas; and (4) failed to
consider claimant’s agoraphobia, which limited the availability
of the jobs mentioned by the vocational expert to less than
significant numbers. The Commissioner disagrees, categorically.
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; ( 2 ) not have reached
1
The brief is also single-spaced, contrary to LR 5.1(a),
which requires all filings to be double-spaced.
4
retirement age; (3) have filed an application; and (4) be under a
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in
this case is whether claimant was under a disability at any time
before September 3 0 , 1994, the date on which her insured status
expired.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . 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). Moreover,
[a]n individual shall be determined to be under a
disability only if [her] physical or mental impairment
or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
[she] lives, or whether a specific job vacancy exists
for [her], or whether [she] would be hired if [she]
applied for work. For purposes of the preceding
sentence (with respect to any individual), “work which
exists in the national economy” means work which exists
5
in significant numbers either in the region where such
individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for disability insurance
benefits, an ALJ is required to employ a five-step process. See
20 U.S.C. §§ 404.1520.
The steps are: 1 ) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2 ) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3 ) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4 ) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform past
relevant work, then the application is denied; 5 ) if
the [claimant], given his or her residual functional
capacity, education, work experience, and age, is
unable to do any other work, the application is
granted.
Seavey v . Barnhard, 276 F.3d 1 , 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in
20 C.F.R. § 1520).
6
The claimant bears the burden of proving that she is
disabled. See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v .
Chater,
944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 8 0 8 , 810-11) (D. Mass. 1982)). Finally,
In assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) plaintiff’s subjective
claims of pain and disability as supported by the
testimony of the plaintiff or other witness; and (3)
the plaintiff’s educational background, age, and work
experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v . Sec’y of HHS,
797
F.2d 1 9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,
690 F.2d
5 , 6 (1st Cir. 1982)).
Claimant argues that the ALJ’s decision should be reversed,
and she should be awarded benefits, because the ALJ incorrectly
determined that her condition did not meet or equal a listed
impairment. More specifically, claimant argues that, from
September 2 8 , 1990, through September 3 0 , 1994, her condition met
the requirements set out in 20 C.F.R. § 4 0 4 , subpt. P, App. 1 ,
P t . A , secs. 12.04(A)(1) & ( B ) .
7
There is a problem with the ALJ’s step-three determination,
but not one that leads necessarily to an award of benefits. The
ALJ did not refer to the Psychiatric Review Technique form in the
record, and did not frame his step-three analysis in terms of the
technique set out therein.
At the initial and reconsideration levels of the
administrative review process, [the Social Security
Administration (“SSA”)] will complete a standard
document to record how [it] applied the [special]
technique [for evaluating the severity of mental
impairments]. At the administrative law judge hearing
. . . level[] [the ALJ] will document application of
the technique in the decision.
20 C.F.R. § 404.1520a(e). Furthermore, “[a]t the administrative
law judge hearing . . . level[], the written decision issued by
the administrative law judge . . . must incorporate the pertinent
findings and conclusions based on the technique.”
20 C.F.R. §
404.1520a(e)(2). Here, the ALJ conducted an analysis of the
medical evidence, but did not document application of the
required psychiatric review technique in his decision.
Overlooking the requirements of
20 C.F.R. § 404.1520a(e) amounts
to legal error necessitating remand. On remand, the ALJ should
frame a step-three analysis that documents application of the
8
psychiatric review technique and that incorporates the findings
listed in the form that was completed and included in the record.
Conclusion
For the reasons given, claimant’s motion to reverse the
ALJ’s decision (document n o . 10) is denied, as is the
Commissioner’s motion for an order affirming the ALJ’s decision
(document n o . 1 1 ) . However, because the ALJ’s decision did not
properly document application of the psychiatric review
technique, it is appropriate to remand the matter.
Pursuant to sentence four of 42 U.S.C. § 405(g), this matter
is remanded to the ALJ for further proceedings. The Clerk of the
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
July 1 6 , 2003
9
cc: Bradley M . Lown, Esq.
David L . Broderick, Esq.
10
