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Pavlakos v. Colvin

United States District Court, D. New Hampshire

March 12, 2015

Robert Pavlakos,
Carolyn Colvin, Acting Commissioner Social Security Administration. Opinion No. 2015 DNH 052


JOSEPH A. DiCLERICO, Jr., District Judge.

Robert Pavlakos seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of the Social Security Administration, denying his application for social security disability benefits and supplemental security income. Pavlakos moves to reverse and remand the decision, contending that the Administrative Law Judge ("ALJ") erred in finding that Pavlakos has the residual functional capacity to perform past relevant work. The Acting Commissioner moves to affirm the decision.

Standard of Review

In reviewing the final decision of the Acting Commissioner in a social security case, the court "is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence." Nguyen v. Chater , 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart , 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. § 405(g). "Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Astralis Condo. Ass'n v. Sec'y Dep't of Housing & Urban Dev. , 620 F.3d 62, 66 (1st Cir. 2010). Substantial evidence, however, "does not approach the preponderance-of-the-evidence standard normally found in civil cases." Truczinskas v. Dir., Office of Workers' Compensation Programs , 699 F.3d 672, 677 (1st Cir. 2012).


The background information is summarized from the parties' joint statement of material facts.

The record shows that Pavlakos has received treatment for mental health issues since 1993 when he was in his twenties. More recently, Pavlakos was diagnosed and treated for depression, PTSD, and bipolar disorder. At the time of the hearing, Pavlakos had been working part time, one hour a day for three days a week, through a supported work program in which he was a member of a six to eight member cleaning crew with two supervisors. Previously, he had done maintenance work at an apartment complex, worked as a manager of a storage facility, and worked as a preparation cook at a hospital. He is now forty-six years old.

In 2006, Pavlakos was diagnosed with bipolar disorder, and he began treatment at Northern Human Services in 2009. Dr. Stacey Charron, a psychiatrist at Northern Human Services, performed a psychiatric evaluation of Pavlavkos in April of 2009 for a prior social security application. Pavlakos was alert and oriented and his insight and judgment were fair. Dr. Charron noted that Pavlakos had been off of medication for a year, that he was struggling with mood swings, and that his nightmares, flashbacks, and "cues of trauma" were likely caused by PTSD. She prescribed Lithium, required a recheck on medication levels in a month, and recommended continued outpatient treatment.

Elizabeth Hess, Ph.D., completed a psychiatric evaluation of Pavlakos for New Hampshire Medicaid Administration Services at the end of April, 2009. Dr. Hess found that Pavlakos had "marked latency retrieving information from memory, " disrupted attention and concentration, marked functional loss in daily activities, marked functional loss in social interaction, marked functional loss in work-related task performance, and could not concentrate or persist on tasks. Dr. Hess also found that Pavlakos had trouble with complexity, lost track of his schedule, had grandiose thinking, and would quit jobs impulsively. She recommended that Pavlakos continue psychotherapy and medication.

Pavlakos received biweekly therapy sessions with Matt Buteau, MS, at Northern Human Services. Northern Human Services also provides other support services to Pavlakos, including a case manager, supported part-time employment, and functional support.

Pavlakos applied for benefits in July of 2011.[1] As part of the application process, Jane V. Buerger, Ph.D., completed a Psychiatric Review Technique on February 22, 2012, for the period from October 7, 2010, through December 31, 2011. Dr. Buerger found that Pavlakos had medically determinable impairments of Bipolar II Disorder and anxiety, but she concluded that the impairments were not severe and caused only mild functional limitations.

After his application for benefits was denied, Pavlakos requested a hearing that was held in April of 2013. Pavlakos had a non-attorney representative who appeared by video for the hearing, and a vocational expert testified by telephone at the hearing. On April 22, 2014, the ALJ issued a decision in which he found that Pavlakos was not disabled. The Appeals Council denied Pavlakos's request for review.


In support of his motion to reverse and remand, Pavlakos argues that the ALJ erred in finding that he has the residual functional capacity to do full-time work because the record lacks expert opinion on that issue and does not support that assessment. Pavlakos also argues that the ALJ erred in finding that he could do past relevant work as a rental store clerk when he has never done that work. The Acting Commissioner contends that the ALJ properly assessed Pavlakos's residual ...

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