Dube v. SSA

Dube v. SSA                            CV-10-179-JL     2/24/11
                   UNITED STATES DISTRICT COURT
                     DISTRICT OF NEW HAMPSHIRE


Joseph Dube

      v.                             Civil N o . 1:10-cv-179-JL
                                     Opinion N o . 

Michael J. Astrue, Commissioner,
Social Security Administration


                          MEMORANDUM ORDER

      This is an appeal from the denial of a claimant’s

application for Social Security Disability Benefits. See 

(g).   The claimant, Joseph Dube, contends that the

administrative law judge (“ALJ”) incorrectly found that Dube was

not disabled because he retained the residual functional capacity

(“RFC”) to perform light duty work, see Admin. R. 12; 1 see

generally, 

(b), and that given his age,

education, and work experience, there were a significant number

of job opportunities available to him.     See 

 §

404.1520(a)(4)(v); p t . 4 0 4 , subpt. P, App. 2 , § 202. Dube

contends that:



      1
      The court will reference the administrative record (“Admin.
R.”) to the extent that it recites facts outside the parties’
joint statement or directly quotes documents in the record. C f .
Lalime v . Astrue, N o . 08-cv-196-PB, 

, at *1 (D.N.H.
Apr. 1 4 , 2009).
     (1) the ALJ failed to discuss relevant medical evidence
     regarding Dube’s mental health impairments
     contradicting the ALJ’s RFC assessment, see 

 § 1527;

     (2) the ALJ ignored a finding by the New Hampshire
     Department of Health and Human Services that Dube was
     disabled (for purposes of state disability benefits)
     due to his mental impairments, see generally 

-j, 167:6, V I ;

     (3) the ALJ’s assessment of the effect that Dube’s
     mental health impairments had on his ability to work
     was unsupported by the evidence, and therefore the ALJ
     did not satisfy his burden of proof at Step Five of the
     disability assessment, see generally, 

(a)(4)(v);2

     (4) given Dube’s mental impairments, the ALJ improperly
     relied on the Medical-Vocational Guidelines (“the
     Grid”), see generally 

 §§ 404.1520(a)(4)(v), p t .
     404, subpt. P, App. 2 ; 404.1560(c)(2), to conclude that
     Dube was not disabled.

     The Commissioner moves for an order affirming the ALJ’s

decision, asserting that it was supported by substantial evidence

in the record.3    This court has jurisdiction under 

(g).     After review of the administrative record, the court




     2
         See infra., Part III.
     3
        The Commissioner admits that the ALJ erred when he
concluded that Dube met the insured status requirements of the
Social Security Act through September 3 0 , 1992. See Admin R. 9;
see generally, 

. Both parties agree that this
was a typographical error, and that Dube meets the insured status
requirements through December 3 1 , 2011. See Cl.’s Am. Compl. ¶
1 4 ; Def.’s Answer to Am. Compl. ¶ 1 4 .

                                  2
grants Dube’s motion, denies the Commissioner’s motion, and

remands the case.


I.   APPLICABLE LEGAL STANDARD

     The court’s review under Section 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, 

 1 , 35 (1st Cir. 1999).   If the ALJ’s factual

findings are supported by substantial evidence in the record,

they are conclusive, even if the Court does not agree with the

ALJ’s decision and other evidence supports a contrary conclusion.

See Tsarelka v . Sec’y of Health & Human Servs., 

(1st Cir. 1988).    Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.”   Richardson v . Perales, 

 (1971)

(quotations omitted).   The ALJ is responsible for determining

issues of credibility, resolving conflicting evidence, and

drawing inferences from the evidence in the record.     See

Rodriguez v . Sec’y of Health & Human Servs., 

 1 8 , 222

(1st Cir. 1981); Pires v . Astrue, 

 5 , 21 (D.

Mass. 2008) (“resolution of conflicts in the evidence or

questions of credibility is outside the court’s purview, and thus

where the record supports more than one outcome, the ALJ’s view


                                  3
prevails”).   The ALJ’s findings are not conclusive, however, if

they were “derived by ignoring evidence, misapplying the law, or

judging matters entrusted to experts.”    Nguyen, 172 F.3d at 3 5 .

If the ALJ made a legal or factual error, the decision may be

reversed and remanded to consider new, material evidence, or to

apply the correct legal standard.    Manso-Pizarro v . Sec’y of

Health & Human Servs., 

 5 , 1 6 , 19 (1st Cir. 1996); see 

(g).


II.   BACKGROUND

      The parties submitted a Joint Statement of Material Facts

(document n o . 12) which is part of the court’s record.   See LR

9.1(d).   The facts included in that statement are outlined here

to the extent necessary to provide adequate background for the

analysis that follows. Because the court is reversing the ALJ’s

order on the basis that the ALJ improperly ignored relevant

psychiatric evidence, the recitation below will focus on evidence

of Dube’s psychological, not physical impairments.


A . Procedural history

      During the summer of 2007, Dube, then 41 years old, applied

for disability benefits and supplemental security income benefits

claiming he was disabled since July 1 5 , 2006 due to debilitating

knee pain resulting from torn cartilage and arthritis.     He

                                 4
claimed that he was in constant pain, couldn’t stand or walk for

long periods of time, and needed to use “a crutch.”         Admin. R.

106.       The Social Security Administration denied Dube’s claims in

September 2007, determining that his impairment was “not severe

enough by SSA rules” to be considered disabled, and that he was

capable of performing light duty work.       

 at 3 7 . In his appeal

of that denial, Dube continued to claim he experienced

debilitating knee pain, and additionally claimed he suffered from

depression beginning in November 2007.       

. On June 2 6 ,

2008, a Federal reviewing official, see 

(b)(2),

denied Dube’s claim after specifically considering both his

chronic knee pain and depression.        Admin. R. 42-44.   The review

official concluded that Dube’s “condition is not severe enough to

keep you from working” and denied his applications for benefits.

 at 4 4 . Dube appealed that decision to the ALJ, see 

(b)(3), who, after a hearing, affirmed the denial of his

claim.      Admin. R. 7-15.   The ALJ concluded that although Dube’s

knee pain and depression were severe impairments,4 see 

(a)(4)(ii), he retained the residual functional

capacity to perform light work “allowing for the postural

functions occasionally.”      Admin. R. 1 2 . The ALJ concluded that


       4
      The ALJ also concluded that Dube suffered from obesity and
cannabis dependence.

                                     5
Dube’s impairments precluded him from returning to his former

work as a lumber inspector, see 

(a)(4)(iv),

but given his residual functional capacity, age, and experience,

he was capable of performing in a significant number of jobs in

the national economy and was not disabled.     Admin. R. 12-14; see

generally 

(a)(4)(v), p t . 4 0 4 , subpt. P, App.

2 , §202.   Dube filed a request to review the ALJ’s decision,

however, the Decision Review Board, see generally id. § 405.401,

did not complete its review in a timely fashion, see id. §

405.415, rendering the ALJ’s decision the final decision of the

Commissioner.   See id.   This appeal followed.


B . Medical and work history evidence before the ALJ

     Although most of the evidence in the administrative file

pertains to the functional limitations arising from Dube’s knee

pain, the issues raised by Dube involve the limiting effects of

his depression.   Therefore, the court recites only that evidence

relevant to Dube’s appeal, namely the state of his mental health.

     Dube underwent a psychological evaluation conducted by D r .

Douglas B . Southworth in November 2007. 5   D r . Southworth



     5
      Dr. Southworth’s notes in the record consist only of a
“Psychiatric Evaluation” form provided by the New Hampshire
Department of Health and Medicaid Administration. Admin. R. 207-
210.

                                  6
diagnosed Dube with a “[d]ysthymic disorder chronic6 [and]

current major depression, [first] episode, moderate.”          Admin. R.

210.       He noted that Dube suffered from knee problems, and that he

had “secondary depression complicated by an anger management

problem and current marital separation.”       Id. at 208. 7

       Overall, D r . Southworth’s evaluation presents a somewhat

unclear picture of the state of Dube’s mental health.          Dr.

Southworth noted that Dube appeared “well groomed, pleasant,

[and] cooperative,” and his speech was clear and normal in pace

and tone. Id. at 208. Dube had good recall, and although Dube’s

affect was “mildly blunted,” he exhibited “[n]o psychotic or

manic symptoms.”      Id.   Functionally, D r . Southworth concluded

that Dube had a “marked” functional loss in performance of his

daily activities due to “[p]ersistent sleep disturbance [and]

current[] homeless[ness].”       Id. at 209. D r . Southworth predicted



     6   dysthymic disorder is “a mood disorder characterized by
       A
depressed feeling (sad, blue, l o w ) , loss of interest or pleasure
in one’s usual activities, and by at least some of the following:
altered appetite, disturbed sleep patterns, lack of energy, low
self esteem, poor concentration or decision-making skills, and
feelings of hopelessness. Symptoms have persisted for more than
two years but are not severe enough to meet the criteria for
major depressive disorder.”    Dorland’s Illustrated Medical
Dictionary, 556 (31st ed. 2007).
       7
      Dr. Southworth’s report not only ties Dube’s depression to
his knee problems, but views his functional limitations and
resolution of his mental health issues as intimately connected to
how Dube’s “orthopedic” issues are addressed. Id. at 208-210.

                                     7
that Dube would have a constant and severe limitation of his work

related/task performance “due to [Dube’s] orthopedic problem

[although] [h]is concentration [and] intelligence appear good.”

Id.   D r . Southworth opined that he “expect[ed] repeated”

functional loss due to work related stress, but explained that it

is “[u]nclear because [Dube] has not yet been placed in any

training or trial job by [vocational rehabilitation services].

He will likely need to make major changes from previous

employment in [the] timber industry.”    Id.

      Although D r . Southworth predicted that the probability that

Dube could return to gainful employment was “[f]air,” he stated

that he “expect[ed] some challenges” and that Dube’s general

level of function would be “[m]arkedly [l]imited” because his

“knee function cannot be corrected.”    Id. at 210. In sum, he

anticipated that Dube would not be able to return to work for

three to four years, noting that a “combination of orthopedic and

psychiatric factors should be considered in a disability

determination.”   Id.   D r . Southworth recommended that Dube have a

further psychiatric evaluation to determine a course of

therapeutic treatment and medication.    Id.

      In January 2008, the New Hampshire Department of Health and

Human Services concluded that Dube was eligible for state

disability benefits based on both his history of knee problems

                                  8
and mental health impairments noted by D r . Southworth.

Significantly, Dube’s disability evaluation specifically noted

Dr. Southworth’s finding that Dube would be unable to return to

work for three to four years in concluding that he was eligible

for benefits. Id. at 280-284.

     Later that month, complaining of disturbed sleep and

appetite, feelings of sadness, hopelessness and helplessness,

Dube sought mental health services from the Northern Human

Services Mental Health Center. As a result of Dube’s anger

management problems, Dube’s wife and son left him, and Dube

needed to move in with his mother and brother. Id. at 211.

Dube was diagnosed with dysthymic disorder and cannabis

dependence, with a Global Assessment of Functioning Scale score

(“GAF”) of 50. 8   Admin. R. 212. Although Dube’s ability to cope


     8
      The Global Assessment Functioning Scale considers
“psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed., text revision 2001). The scale is divided
into 10 ranges of function between 1 and 100. Id. at 3 2 . For
example, a score between 91-100 indicates “[s]uperior functioning
in a wide range of activities . . . [n]o symptoms,” while a score
between 1-10 indicates “[p]ersistent danger of severely hurting
self or others . . . OR persistent inability to maintain minimal
personal hygiene OR serious suicidal act with clear expectation
of death.” Id. at 3 4 . The scores are used “for reporting the
clinician’s judgment of the individual’s overall level of
functioning, . . . [to] plan[] treatment and measure[] its
impact, and in predicting outcome.” Id. at 3 2 . Scores usually


                                  9
and utilize interpersonal skills under stress suffered from

“[n]oticeable [d]isruption,” and Dube needed “guidance” in

performing daily activities, id. at 215, the assessment also

observed that Dube had good interpersonal skills, money

management skills, judgment, cognitive ability, and a mastery of

reading, writing and arithmetic.       Id. at 212. The assessment

also noted that Dube was able to take care of himself and had a

sense of humor.   Id.

     Dube attended multiple therapy sessions with Robert D. Hamm,

MSW, at Northern Human Services Mental Health Center from January

through April 2008.     Although he exhibited a depressed mood, he

appeared to be making progress during the course of treatment.

Id. at 217-224, 231-244. Dube was discharged from care on June

5.   The discharge note lists the reason as “[v]oluntary by

[c]onsumer.”   Id.

     An administrative hearing was held on October 1 4 , 2009

during which Dube testified about his limitations. Id. at 20-33.

Although the hearing focused primarily on Dube’s knee issues,


are based, however, on the current “level of functioning.”      Id.
at 3 3 .

     A GAF score of 50 indicates “[s]erious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a j o b ) .
Id.

                                  10
when asked about any other limiting conditions, Dube replied,

“I’ve become depressed because I can’t do anything anymore that I

used to do.”    Id. at 2 5 . Dube described the limiting effect of

his depression, stating:

     I’m not as social as I used to b e . I don’t visit my
     friends as much — you know, some of my friends I don’t
     see at all anymore. Sometimes I just don’t really want
     to get out of bed. I mainly, like I said, I really
     miss the hiking and everything I used to d o . I really
     miss that a lot . . . .

Id. at 31-32.


D . The ALJ’s decision

     A month later, the ALJ issued an order denying Dube’s

request for benefits. He found that Dube was severely impaired

due to obesity, degenerative joint disease, depression, and

cannabis dependence. Id. at 1 0 ; see generally 

(c).    The ALJ denied benefits, however, because he

concluded that despite his impairments, Dube had the residual

functional capacity to perform light work, limited only by the

ability to perform “postural functions” occasionally.    Admin. R.

1 2 ; see generally, 

(b).   The ALJ concluded that

although Dube’s impairments rendered him unable to perform his

prior work as a lumber inspector, see generally 

(a)(4)(iv), given Dube’s age, education and work

experience, there were significant jobs in the national economy

                                  11
available to him, and therefore, Dube was not disabled.   See 

§ 404.1520(a)(4)(v); Admin. R. 13-14; see generally, Seavey v .

Barnhart, 

 , 5 (1st Cir. 2001) (explaining “the Grid”).

     With respect to Dube’s depression, the ALJ found it to

constitute a severe impairment, see generally, 

(a)(4)(iii), noting:

     [t]he medical record notes treatment for depression in
     2007 and 2008 and suggests that his condition was
     secondary to marital and employment problems. When he
     was evaluated in January 2008, he was diagnosed with
     dysthemic disorder and cannabis dependence in
     early/partial remission, with a GAF of 5 0 . Although he
     endorsed symptoms of depression, which included
     insomnia, poor appetite, hopelessness, and anger, he
     also appeared well-groomed and well-oriented, with an
     appropriate affect, reality based and intact thoughts,
     and calm behavior. In fact, it appears that in March
     2008 his depressive symptoms had improved, and by June
     2008 he was discharged at his own request . . . .

Admin R. 1 0 . The ALJ concluded however, that the impairment was

not disabling, because although Dube alleged “that he suffers

from disabling . . . depression . . . there is no valid or

consistent objective evidence of this . . . .   Moreover, his

depression has improved such that he stopped counseling by his

own volition.”9   

 at 1 3 .

     9
      Dube’s reasons for stopping treatment are unclear. Staff
at Northern Human Services Mental Health Center merely checked
the “Voluntary by Consumer” box under the heading “Reason for
Discharge.” 

. Notably, the mental health provider did
not choose “No need for further Treatment Services” from a
potential checklist of reasons in the discharge form. 

                                 12
III. ANALYSIS

     A five-step process is used to evaluate an application for

social security benefits. 

(a)(4).       The

applicant bears the burden through the first four steps to show

that he is disabled.10   Freeman v . Barnhart, 

(1st Cir. 2001).   At the fifth step, the Commissioner bears the

burden of showing that a claimant has the residual functional

capacity to perform other work that may exist in the national

economy.    Id.; see also 

(a)(4)(v); Heggarty

v . Sullivan, 

 9 0 , 995 (1st Cir. 1991).   The ALJ’s

conclusions at steps four and five are informed by his assessment

of a claimant’s residual functional capacity (“RFC”), which is a

description of the kind of work that the claimant is able to

perform despite his impairments. 

,

404.1545.




     10
      Specifically, a claimant must show that: (1) he is not
engaged in substantial gainful activity; (2) he has a severe
impairment; (3) the impairment meets or equals a specific
impairment listed in the Social Security regulations; or (4) the
impairment prevents or prevented him from performing past
relevant work. 

 The Social Security Act defines disability
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.” 

(d)(1)(A).

                                  13
     Dube asserts that the ALJ made multiple errors regarding the

effect of Dube’s mental health limitations when the ALJ

concluded, at the fifth step of the evaluation, that although

Dube was impaired, he possessed the RFC to perform at the light

work capacity.   The court concludes that because the ALJ did not

address contradictory aspects of the medical opinion offered by

Dr. Southworth in his evaluation of Dube’s RFC, the decision of

the ALJ should be reversed and remanded.



A . Mental health evidence

     Dube contends that the ALJ erred in failing to discuss

psychiatric medical evidence contrary to the determination that

Dube was capable of light work.    In particular, Dube asserts that

the ALJ failed to address D r . Southworth’s evaluation and the

“Intake Assessment” from Northern Human Services.11   The


     11
        Dube casts the “Intake Assessment” as a “psychiatric
evaluation.” As the Commissioner correctly points out, the
record indicates that this evaluation was completed by a social
worker, not a psychiatrist. Admin. R. 216. Social workers are
not “medical sources,” see Anderson v . Astrue, 

 9 , 96 (D. Mass. 2010); see generally, 

(a)(1)-(5), and therefore do not generate a “medical
opinion” that must be considered by an ALJ. See Evans v .
Barnhart, N o . 02-459-M, 

, at *5-*6 (D.N.H. Dec.
4 , 2003); see generally 

(a)(2),
404.1513(a)(1)-(5), (d)(1). Rather, social worker opinions are
categorized as “other sources” of evidence. See generally, 

 §
404.1513(d). In this district, an ALJ “may” consider other
sources, but is under no obligation to do s o . See Evans, 

Commissioner replies that the ALJ did not err because although he

did not address D r . Southworth’s opinion, the ALJ “incorporated

many of the relevant conclusions in D r . Southworth’s opinion.”12

Def.’s B r . at 6.   It was error for the ALJ to overlook D r .

Southworth’s opinion and therefore, the court reverses the ALJ’s

decision.




22871698 at * 6 . An ALJ is not obliged to discuss every piece of
relevant evidence, so long as his conclusion is “supported by
citations to substantial medical evidence . . . and the
unaddressed evidence was either cumulative . . . or otherwise
failed to support the claimant’s position.” Lord v . Apfel, 

 , 13 (D.N.H. 2000). Special consideration must be
given to contrary evidence “[f]or a reviewing court to be
satisfied that an ALJ’s decision was supported by substantial
evidence, that decision must take into account whatever in the
record fairly detracts from its weight.” 

 (quotations
omitted). In this case, the ALJ specifically discussed the
Intake Assessment when he determined that Dube’s impairments
included depression. See 

 In doing s o , the ALJ noted both
limiting symptoms, and those supporting an ability to work.
Admin. R. at 1 0 . Although the ALJ did not discuss the assessment
in detail later when evaluating Dube’s functional capacity, 

at 1 3 , he did reference his earlier discussion of the assessment,

 and was under no obligation to rehash it thoroughly. See
Evans, 

 at * 6 ; Lord, 

;
cf. Anderson, 

 (because social worker was
not a “medical source . . . . use of his testimony or the weight
. . . assigned thereto was entirely discretionary”).
     12
      Notably, however, to the extent that D r . Southworth’s
conclusion were “incorporated,” they were attributed to the
Intake Assessment completed by the staff at Northern Human
Services. Admin. R. 1 0 .

                                   15
     “[T]he First Circuit has held that an ALJ’s written decision

need not directly address every piece of evidence in the

administrative record” if it is cumulative of evidence already

discussed by the ALJ or fails to support the claimant’s position.

Lord, 

 3 . “At the same time, the First

Circuit and district courts within this circuit have held that an

ALJ may not simply ignore relevant evidence,13 especially when

that evidence supports a claimant’s cause.”     

 (citing cases).

While an ALJ, not the reviewing court, resolves conflicts in the

evidence, an ALJ may not adopt one view of the evidence, “without

addressing the underlying conflict.”     Nguyen v . Callahan, 

 (D. Mass. 1998)(quotations omitted).

     Moreover, a court must be able to determine whether the ALJ

considered the contrary evidence and chose to discredit i t , or

whether it was “simply ignored.”     Lord, 

 4 .

“For a reviewing court to be satisfied that an ALJ’s decision was

supported by substantial evidence, that decision must take into

account whatever in the record fairly detracts from its weight.”

 (quotations omitted).


     13
      Dr. Southworth was not a treating physician, see 

, and as such, the ALJ did not need to consider whether
his opinion should be given controlling weight. See Guyton v .
Apfel, 

 (D. Mass. 1998) (explaining two
step analysis to determine if treating source opinion is afforded
“controlling weight”).

                                16
     The Commissioner asserts that many of D r . Southworth’s

conclusions were similar to those specifically attributed to

Northern Services, and thus may be considered “cumulative” and

unnecessary to include in the order. See Lord, 

 3 . However, these “cumulative” findings generally encompass

facts supportive of the ALJ’s conclusion that Dube was not

disabled.14    The problem, however, is that the ALJ ignored

findings by D r . Southworth regarding Dube’s functionality that

contradict the ALJ’s conclusion.        C f . Brunel v . Barnhardt, N o .

Civ.00-402-B, 

, at *9 (D.N.H. Jan. 7 , 2002) (ALJ

cannot parse medical evidence, accepting favorable evidence and

ignoring unfavorable evidence “without offering a principled

reason”).     Specifically, D r . Southworth concluded that although

the prospect that Dube could return to gainful employment was

“fair,” he also opined that: (1) Dube’s general level of

function would be “markedly limited,” (2) there would be repeated

functional loss, and (3) he expected that Dube would be unable to

work for three to four years. Admin. R. at 209-210. It was



     14
       For example, both the Northern Human Services evaluation
and D r . Southworth concluded that Dube was “well-groomed,
pleasant, cooperative,” Admin. R. 2 0 8 , 2 1 1 , and appeared “calm
and alert,” 

 at 2 1 1 , and “clear,” 

. Although
depressed, Dube did not exhibit any “psychotic or manic
symptoms,” 

 at 2 0 8 , and exhibited “appropriate, reality based”
affect. 

.

                                   17
error for the ALJ not to properly consider this contradictory

evidence.    C f . Evans, 

, at *6 (no error where ALJ

properly recognized inconsistent psychological assessment and

explained why it was discounted); Nguyen, 

(error for ALJ to fail to mention contrary psychological

assessment).

     Because State agency medical and psychological
     consultants and other program physicians and
     psychologists are experts in the Social Security
     disability programs, the rules in 20 C.F.R.
     404.1527(f) and 416.927(f) require administrative law
     judges . . . to consider their findings of fact about
     the nature and severity of an individual’s
     impairment(s) as opinions of nonexamining physicians
     and psychologists. Administrative law judges . . . are
     not bound by findings made by State agency or other
     program physicians and psychologists, but they may not
     ignore these opinions and must explain the weight given
     to the opinions in their decisions.

SSR 96-6p, 

, at *2 (July 2 , 1996); see also SSR 96-

5 p , 

, at *6 (July 2 , 1996).   D r . Southworth’s

conclusion that Dube would be unable to work for many years is

relevant to Dube’s ability to “engage in substantial gainful

activity.”    

 (d)(1)(A).   The ALJ was obligated to

recognize the contradiction and state his reasons for deciding

not to accept it.15   Failure to do so was error. C f . Adie v .


     15
      In the motion before this court, counsel for the
Commissioner ably posits numerous reasons “[l]ending support to
the ALJ’s disregard of D r . Southworth’s limitational
assessments.” Def.’s B r . 6. It is the responsibility of the ALJ

                                  18
Comm’r, Soc. Sec. Admin., 

 6 1 , 268 (D.N.H. 1996)

(inadequate consideration of medical evidence potentially

corroborating claimant and “selective” consideration of treating

physician opinion was error).   The decision of the ALJ is

reversed and the case is remanded for further proceedings in

accordance with this order.




to undertake that analysis in the first instance, not the court.
The court recognizes that it is possible that on remand, the
Commissioner may once again conclude that Dube was not disabled
during the relevant time period. “If he reaches such a
conclusion, however, he must do so in a manner that demonstrates
that all the relevant evidence in the record was considered in
accordance with applicable legal standards.” Lord, 

.

     The court also notes that the Federal review official’s
order denying benefits specifically gave lesser weight to the
medical opinion of D r . Douglas Southworth. Admin. R. 4 3 . In his
denial, the review official found that D r . Southworth’s “opinion
as to your physical limitations to be contrary to other more
qualified medical experts . . . .” 

 Although the ALJ’s
subsequent treatment of D r . Southworth’s opinion forms the basis
of Dube’s appeal before this court, neither party alerted the
court to the review officer’s finding, nor the ALJ’s statement
that he “agrees with all of the substantive findings the FedRO
made on these claims.” 

 at 1 4 . The court cannot determine
from the record whether the ALJ considered D r . Southworth’s
contradictory opinions however, because the review official’s
conclusions are couched in physical, not psychological terms.
Moreover, the court is uncomfortable resting its determination on
a basis neither argued nor even addressed by either party.

                                 19
B . Other issues on remand

     Dube contends that the ALJ erred in ignoring the

determination by the New Hampshire Department of Health and Human

Services that Dube was disabled for purposes of state disability

benefits.   “[A] determination made by another agency [e.g.

Workers’ Compensation, the Department of Veterans Affairs, or an

insurance company] that you are disabled . . . is not binding on

[the Commissioner].”   SSR 06-3P, 

, at *6 (August

9, 2006).   Therefore, the ALJ was not required to award benefits

simply because Dube was found to be disabled by a state
evaluator.16


     16
      To the extent that Dube argues that the award of state
benefits was relevant evidence that was impermissibly ignored,
the court finds no error. A state determination is not, in and
of itself, evidence of disability. It is a determination of
disability based on specific state rules and relevant evidence in
the state record regarding a claimant’s functionality. 

.

     Because the ultimate responsibility for determining
     whether an individual is disabled under Social Security
     law rests with the Commissioner, we are not bound by
     disability decisions by other governmental . . .
     agencies. In addition, because other agencies may
     apply different rules and standards . . . for
     determining whether an individual is disabled, this may
     limit the relevance of a determination of disability
     made by another agency. However, the adjudicator
     should explain the consideration given to these
     decisions in the notice of decision for hearing cases




                                20
     Dube also contends that it was error for the ALJ to consult

the Grid to determine at Step Five whether he was disabled.        The

Grid is a device appropriately used by the Commissioner at Step

Five to carry his burden of showing that there are jobs available

in the national economy given the claimant’s limitations. See,

e.g., Guyton, 

 (citing cases).    The Grid

allows the Commissioner “to satisfy this burden in a streamlined

fashion” where a claimant’s limitations affect the strength

requirements of a job. Ortiz v . Sec’y of Health & Human Servs.,

 2 0 , 524 (1st Cir. 1989) (quotations omitted).   “In

cases where a nonexertional impairment significantly affects [a]

claimant’s ability to perform the full range of jobs he is

otherwise exertionally capable of performing, the Secretary must

carry his burden of proving the availability of jobs in the

national economy by other means, typically through the use of a

     Although it may be good practice to explain why contrary
state agency determinations were not followed, merely ignoring an
administrative conclusion is not error per s e . See Evans, 

, at *6 (where language is permissive, not mandatory,
it is not clear that the ALJ is obligated to take action); c f .
Boulet v . Cellucci, 

 1 , 73 (D. Mass. 2000).
Rather, it is more troubling if relevant evidence of disability
forming the basis of the state finding is in the record and
ignored. See Bickford v . Barnhart, 

 9 , 42 (D.
M e . 2002) (error to ignore medical evidence in Veterans
Administration records); c f . Lord, 

 3 .


                                 21
vocational expert.”     

 (quotations and citations omitted).    An

ALJ may rely on the Grid, however, if the non-strength

impairments “impose no significant restriction on the range of

work” a claimant can perform or only reduces the occupational

base “marginally.”     

   “Special caution is required in

evaluating the effects of mental illness when relying on the

Grid,” Larocque v . Barnhart, 

 (D.N.H.

2006), but use of the Grid is not precluded by the presence of

low level personality disorders. Ortiz, 890 F.2d at 5 2 4 , n.3.

      Dube contends that use of the Grid was inappropriate because

“the psychiatric evaluations in the record indicate M r . Dube’s

ability to perform light work would be significantly limited by

his mental impairments, particularly due to his reaction to work

related stress.”     Cl.’s B r . 1 2 . The Commissioner replies that

such limitations are minimal, claiming there was “a dearth of

evidence of an intolerance for stress. Indeed, D r . Southworth

. . . said that [Dube’s] reaction to stress was unclear . . . .”

Def.’s B r . 1 2 .

      The ALJ, however, only briefly addressed Dube’s mental

impairments when relying on “the Grid,” stating, in a conclusory

fashion, “the additional limitations have little or no effect on

the occupational base of unskilled work.”      Admin. R. 1 4 . On this

record, it is not apparent to the court whether the ALJ used

                                   22
“special caution” in determining whether Dube’s mental

limitations precluded use of the Grid.   C f . Larocque, 

 (finding error where “ALJ did not explain why

an individualized assessment was not needed here and ignored

important limitations in [claimant’s] ability to work”).    The

court need not decide whether the ALJ’s lack of specificity was

error, however, because it is remanding the case on other grounds

to the ALJ who will issue a new decision. Thus, it is

unnecessary to determine whether Dube’s mental impairments were

significant enough to make use of the Grid inappropriate or

whether the ALJ’s reasons for using the Grid were insufficient.17

Cf. Costa v . Astrue, N o . 1:09-cv-441-JL, 

, at *10

(court did not decide whether ALJ erred because case was being

remanded on other grounds, but concluded that at most, ALJ’s

order was barely sufficient).



IV.   CONCLUSION

      Pursuant to sentence four of 

(g), Dube’s

motion to reverse and remand the Commissioner’s decision


      17
      Similarly, the court need not address Dube’s remaining
claim that the Commissioner failed to carry his burden of proof
at Step Five of the decision making process. On remand, the ALJ
will reconsider the evidence and issue a new ruling, rendering
review of the sufficiency of the ALJ’s process is unnecessary at
this time. C f . Lord, 

 2 , n.14.

                                 23
(document n o . 10) is granted.    The Commissioner’s motion to

affirm the decision (document n o . 11) is denied.           The Clerk of

Court is directed to enter judgment in accordance with this order

and close the case.



      SO ORDERED.


                                                /   ___-____—

                                  Joseph
                                      _ _ _ N.^Laplante
                                            _ _ _ _ _ _ a—
                                  United States District Judge

Dated:   February 2 4 , 2011

cc:   Michael G. Perez, Esq.
      Gretchen Leah Witt, Esq.




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