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Maryelizabeth C. Tardiff v. Michael J. Astrue

March 7, 2012


The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 053


Maryelizabeth C. Tardiff filed a complaint, pursuant to 42 U.S.C. § 405(g), seeking judicial review of the decision of the Commissioner of the Social Security Administration, denying her application for Supplemental Security Income benefits.*fn1 Tardiff moves to reverse and remand the decision for further administrative proceedings. The Commissioner objects to Tardiff's motion, contending that the Administrative Law Judge ("ALJ") did not err by allowing the medical expert to testify by telephone and that substantial evidence supports the decision.


The parties' joint factual statement shows that Tardiff applied for Supplemental Security Income benefits on May 2, 2007, when she was twenty-five years old. She had previously worked in 2007 for nine months as a cashier at the service desk at Building 19, Inc. and then at Dunkin Donuts, but quit the Dunkin Donuts job after two days because of conflict with a co-worker. She alleged that she was disabled primarily by mental disabilities due to post-traumatic stress disorder, major depressive disorder, and borderline personality disorder. She also had been diagnosed with Hepatitis C.

Medical Records

Tardiff was treated at Merrimack River Medical Services in 2006 and 2007 where she reported that she was taking street methadone. She was diagnosed with opiate dependency, dysthymia, and hepatitis. She was assessed to have a Global Assessment of Functioning ("GAF") score of 50.*fn2

In May of 2007, Tardiff met with Sheryl Wood, M.S.W., at Manchester Community Health Center. Tardiff told Wood that she was pregnant and had stopped taking methadone. She then began receiving prenatal care at the Health Center. Tardiff also sought mental health treatment and met with Gavin Muir, M.D., on May 22, 2007. Tardiff had a baby at Elliot Hospital, in Manchester, on January 8, 2008. She did not return to the Health Center after the baby was born.

Tardiff met with Peter J. Taylor, LICSW, at Bedford Counseling Associates on May 20, 2008. Taylor assessed Tardiff to have a normal mental status examination except for "tangential but redirectable thoughts." Taylor diagnosed a mood disorder with a GAF score of 50. Tardiff was treated at the Elliot Hospital emergency room for lacerations to her hand on May 31, 2008, which were the result of punching her hand through a window because she was mad at her boyfriend.*fn3

On June 4, 2008, Tardiff had a psychotherapy session with Taylor. She reported to Taylor on June 19 that her mood and (internal quotation marks omitted). A GAF score between 51 and 60 indicates moderate symptoms, and a score between 61 and 70 reflects some mild symptoms. Id. sleep had improved with medication but she still had emotional episodes and felt a loss of control when dealing with family members. Taylor noted unremarkable mood or affect, unremarkable thought processes, and unremarkable behavior or functioning. On June 5, 2008, Michelle Gunning, M.D., a staff psychiatrist at Mental Health Center of Greater Manchester, assessed Tardiff with goal directed thought processes, intact memory, fair attention and concentration, depression, and anxiety. Dr. Gunning found a GAF score of 50.

On June 25, 2008, Tardiff had a liver biopsy due to concerns about Hepatitis C. The results of the biopsy were positive. Tardiff experienced complications from the biopsy because a blood vessel was punctured during the procedure. Her treating doctor noted that she was suffering depression and anxiety and advised Tardiff to continue to take Celexa and Trazadone.

Tardiff was evaluated at the Mental Health Center on August 11, 2008. She was diagnosed with post traumatic stress disorder, opiate dependence, and borderline personality disorder. She was assessed in the severe range for depression and had a GAF score of 40.

The Social Security Administration requested a consultative examination, which was done on August 13, 2008, by Darlene R. Gustavson, Ph.D. Dr. Gustavson found that Tardiff's thoughts were sometimes loosely associated and paranoid but could be redirected and that Tardiff's insight and judgment were limited. She assessed an average intellectual functioning. Dr. Gustavson diagnosed post traumatic stress disorder, recurrent and severe major depressive disorder with psychotic features, and borderline personality disorder. With respect to functioning, Dr. Gustavson stated that Tardiff could not understand or remember instructions, was not able to interact appropriately with others, was not able to sustain attention or complete tasks, and was not able to tolerate common work stress.

On September 22, 2008, a psychologist from the Disability Determination Service, J. Coyle, reviewed Tardiff's records and completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Evaluation form based on his review alone. Dr. Coyle found that Tardiff had moderate limitations in her ability to understand and remember detailed instructions, to maintain attention and concentration, to perform activities within a schedule including attendance and punctuality, to work with or near others, to complete a work day and week without an unreasonable number of interruptions due to psychological symptoms, to act appropriately with the public and supervisors, to get along appropriately with co-workers, to respond appropriately to changes in the work place, and to set realistic goals. Despite her moderate limitations, Dr. Coyle concluded that she could understand and remember short routine instructions, sustain attention and effort with an acceptable pace, have brief or casual interactions with the public, interact appropriately with co-workers and supervisors in a work setting, maintain grooming and hygiene, and tolerate routine stress and adapt to minor changes in a work setting.

On August 26, 2009, Tardiff's treating psychiatrist, Dr.

John Palmieri, completed a mental functional capacity evaluation report.*fn4 Dr. Palmieri wrote that based on reports about Tardiff's work experiences, he thought that she was unable to meet the competitive standards for doing unskilled work because she could not maintain attention for a two-hour period, could not maintain regular attendance or punctuality, could not work with or near others without being unduly distracted, could not complete a work day or week without interruptions due to psychological symptoms, could not accept instruction or respond appropriately to criticism, could not get along with co-workers, and could not respond appropriately to changes in the work place. Dr. Palmieri also found that Tardiff was not precluded from working but was severely limited in her ability to make work related decisions, perform at a consistent pace, and deal with normal work stress.

Tardiff was treated at the Mental Health Center of Greater Manchester through December of 2009. She was diagnosed with post traumatic stress disorder, anxiety, and depression with a variety of symptoms. She was prescribed medication that was changed several times. During that time, she was assessed with GAF scores generally in the 50s.

Tardiff was admitted to the Cypress Center on November 26, 2009, and was held overnight because of suicidal thoughts. The record noted that Tardiff considered overdosing on medications and had experienced increased depression, anxiety, and panic attacks. She had also had financial problems. Tardiff was homeless and felt overwhelmed. She was diagnosed with post traumatic stress disorder, cocaine dependence, borderline personality disorder, and a GAF score of 30.

Following treatment at the Cypress Center, Tardiff saw Dr. Palmieri on December 16, 2009. Dr. Palmieri noted that Tardiff was feeling overwhelmed by her responsibilities for her young son, that she had stopped her medication briefly, and that she then felt better but was still struggling with anxiety, motivation, energy, and desire. Dr. Palmieri assessed a GAF score of 56. When Tardiff saw Dr. Palmieri in January of 2010, his diagnoses and GAF score were unchanged. Tardiff also participated in group therapy and parenting classes through December and into January of 2010.

Administrative Proceedings

After Tardiff's application for Supplemental Security Income benefits was denied on September 26, 2008, she requested a hearing before an ALJ. A hearing was held on April 13, 2010, and a subsequent hearing was held on July 20, 2010. The notice for the first hearing stated that Gerald Koocher, Ph.D. would testify as a medical expert but did not specify the means by which he would testify. At both hearings, Dr. Koocher testified by telephone. Tardiff's counsel objected to telephonic testimony. Tardiff was represented by counsel and testified at the April 13, 2010, hearing. Tardiff's mother, Susan Tardiff; a vocational expert, John Bopp, and Dr. Koocher also testified at the hearing. Only Dr. Koocher testified by telephone.

Concerning her prior work history, Tardiff testified that she had worked at Building 19 as a cashier and at the service desk but was demoted because she could not handle the job requirements. She testified that she thought the main supervisor was "out to get her," that she had stopped methadone because she was pregnant, and that she quit the job while she was on sick leave. She returned to the job briefly ...

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