United States District Court, D. New Hampshire
Dorothea Heintz, Esq.
E. Choi, Esq.
David Plourde, AUSA
ORDER ON APPEAL
N. Laplante United States District Judge.
Pavlakos has appealed the Social Security
Administration's (“SSA”) denial of his
application for a period of disability and disability
insurance benefits. An administrative law judge
(“ALJ”) at the SSA ruled that, despite several
severe impairments, Pavlakos retains the residual functional
capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and thus is not
disabled. See 20 C.F.R. §§
404.1505(a), 416.905(a). The Appeals Council denied
Pavlakos's request for review, with the result that the
ALJ's decision became the final decision on his
application, see id. § 404.981. Pavlakos then
appealed the decision to this court, which has jurisdiction
under 42 U.S.C. § 405(g) (Social Security).
has moved to reverse the decision. See LR 9.1(b).
The Acting Commissioner of the SSA has cross-moved for an
order affirming the ALJ's decision. See LR
9.1(c). After careful consideration, the court denies
Pavlakos's motion and grants the Acting
Applicable legal standard
court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal
standards and found facts upon the proper quantum of
evidence.” Ward v. Comm'r of Soc. Sec, 211
F.3d 652, 655 (1st Cir. 2000). It “review[s] questions
of law de novo, but defer[s] to the Commissioner's
findings of fact, so long as they are supported by
substantial evidence, ” id., that is,
“such evidence as a reasonable mind might accept as
adequate to support a conclusion, ” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted).
Though the evidence in the record may support multiple
conclusions, the court will still uphold the ALJ's
findings “if a reasonable mind, reviewing the evidence
in the record as a whole, could accept it as adequate to
support his conclusion.” Irlanda Ortiz v. Sec'y
of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991). The court therefore “must uphold a denial
of social security . . . benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.'” Manso-Pizarro
v. Sec'y of Health and Human Servs., 76 F.3d 15, 16
(1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
invoked the requisite five-step sequential evaluation process
in assessing Pavlakos's request for disability and
disability insurance benefits. See 20 C.F.R.
§§ 404.1520, 416.920. After determining that
Pavlakos had not engaged in substantial gainful activity
after the alleged onset of his disability on February 15,
2008, the ALJ analyzed the severity of his impairments. At
this second step, the ALJ concluded that Pavlakos had the
following several impairments: bipolar disorder,
posttraumatic stress disorder (PTSD), and degenerative disc
third step, the ALJ found that Pavlakos's severe
impairments did not meet or “medically equal” the
severity of one of the impairments listed in the Social
Security regulations. See 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and
416.926. In doing so, the ALJ rejected the opinion of
impartial medical expert Dr. Richard Cohen, who opined that
Pavlakos's mental impairments equaled listing 12.04.
reviewing the medical evidence of record, medical opinions,
and Pavlakos's own statements, the ALJ concluded that
Pavlakos retained the RFC to perform light work, see
20 C.F.R. §§ 404.1567(b) and 416.967(b), except
that he could:
[o]ccasionally climb, balance, stoop, kneel, crouch, and
crawl; he would be limited to simple-unskilled work; he could
persist at tasks for two-hour periods over an eight-hour day
and forty-hour week; and he could sustain brief and
superficial social interaction with the general public,
co-workers, and supervisors.
that, even limited in this manner, Pavlakos was able to
perform jobs that exist in significant numbers in the
national economy, see 20 C.F.R. §§
404.1566 and 416.966, the ALJ concluded his analysis and
found that Pavlakos was not disabled within the meaning of
the Social Security Act.
challenges the ALJ's decision on three fronts, arguing
that the ALJ erred by: (1) rejecting Dr. Cohen's opinion
that Pavlakos's mental impairments medially equaled the
severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1; (2) concluding that Pavlakos has
the RFC to perform full-time work; and (3) relying on an
incomplete hypothetical question to the vocational expert in
finding that Pavlakos can perform work available in the local
and national economy. The court addresses each argument in turn.
Dr. Cohen's opinion
called Dr. Cohen, a board-certified psychiatrist, to testify
as a medical expert at Pavlakos's hearing. Dr. Cohen
testified that Pavlakos's bipolar disorder, PTSD, and a
previously undiagnosed dependent personality disorder were
severe impairments. He concluded that these impairments did
not meet or equal the “B criteria” of Listing
12.04 because they only moderately impaired Pavlakos's
activities of daily living, social functioning, and ability
to concentrate, persist, and keep pace, and because he had no
episodes of decompensation for extended
duration. Dr. Cohen further opined, however, that
Pavlakos's mental impairments, when combined with chronic
pain from his physical impairments, medically equaled Listing
12.04C(2). Specifically, he concluded that “the
stress of working would increase his mood swings, . . .
nightmares and flashbacks, . . . anxiety, . . . grandiosity,
[and] racing thoughts to the point where he's missed more
than three days of work a month.” The ALJ rejected
“is responsible for deciding the ultimate legal
question whether a listing is met or equaled.” Titles
II & XVI: Consideration of Admin. Findings of Fact by
State Agency Med. & Psychological Consultants & Other
Program Physicians & Psychologists at the Admin. Law
Judge & Appeals Council (“SSR 96-6P”), 1996
WL 374180, *3 (S.S.A. July 2, 1996). “In evaluating the
opinions of medical sources on issues, ” such as this
one, which are “reserved to the Commissioner, the [ALJ]
must apply the applicable factors in 20 CFR 404.1527(d) and
416.927(d).” Titles II & XVI: Med. Source Opinions
on Issues Reserved to the Comm'r (“SSR
96-5P”), 1996 WL 374183, *3 (S.S.A. July 2, 1996).
Under those regulations, the ALJ uses medical sources
“to provide evidence, including opinions, on the nature
and severity of [the applicant's] impairment(s), ”
but retains “the final responsibility for
deciding” whether a petitioner's
“impairment(s) meets or equals” a listing. 20
C.F.R. § 404.1527(d)(2), 416.927(d)(2). “Although
an ALJ is not free to simply ignore medical opinions
supporting a claimant's ...