217 F. Supp.2d 162 (2002) | Cited 0 times | D. Maine | August 29, 2002


No objections having been filed to the Magistrate Judge'sRecommended Decision filed August 9, 2002 the RecommendedDecision is accepted.

Accordingly, it is ORDERED that the commissioner's decisionis VACATED and the cause REMANDED for reevaluationconsistent with the recommended decision of the magistratejudge.


This Social Security Disability ("SSD") and SupplementalSecurity Income ("SSI") appeal raises the question whethersubstantial evidence supports the commissioner's determinationthat the plaintiff, who suffers from anxiety and depression, hasno severe impairment. I recommend that the decision of thecommissioner be vacated and remanded for further proceedings.

In accordance with the commissioner's sequential evaluationprocess, 20 C.F.R. § 404.1520, 416.920; Goodermote v.Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir.1982), the administrative law judge found, in relevant part,that the plaintiff had anxiety and depression, Finding 3, Recordat 17; that he did not have any impairment that significantlylimited his ability to perform basic work-related functions andtherefore did not have a severe impairment; Finding 5, id.;and that he had not been under a disability at any time throughthe date of decision, Finding 6, id. The Appeals Councildeclined to review the decision, id. at 5-6, making it thefinal determination of the commissioner, 20 C.F.R. § 404.981,416.1481; Dupuis v. Secretary of Health & Human Servs.,869 F.2d 622, 623 (1st Cir. 1989).

The standard of review of the commissioner's decision iswhether the determination made is supported by substantialevidence. 42 U.S.C. § 405(g), 1383(c)(3); Manso-Pizarro v.Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996). In other words, the determination must be supported bysuch relevant evidence as a reasonable mind might accept asadequate to support the conclusion drawn. Richardson v.Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842(1971); Rodriguez v. Secretary of Health & Human Servs.,647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 2 of the sequentialprocess. Although a claimant bears the burden of proof at thisstep, it is a de minimisburden, designed to do no more than screen out groundlessclaims. McDonald v. Secretary of Health & Human Servs.,795 F.2d 1118, 1123 (1st Cir. 1986). When a claimant producesevidence of an impairment, the commissioner may make adetermination of non-disability at Step 2 only when the medicalevidence "establishes only a slight abnormality or combinationof slight abnormalities which would have no more than a minimaleffect on an individual's ability to work even if theindividual's age, education, or work experience werespecifically considered." Id. at 1124 (quoting Social SecurityRuling 85-28).

The plaintiff asserts that remand for further proceedings iswarranted inasmuch as the administrative law judge erred in (i)finding his mental impairments non-severe and (ii) ignoring theissue of medication side effects. Statement of Specific Errors("Statement of Errors") (Docket No. 3). The first point is notpersuasive; however, the second point has merit, warrantingremand for further proceedings.

I. Discussion

A. Severity of Mental Impairments

The Record reveals that in January 1999, after receivingpharmacological treatment (including Valium, Zoloft and Xanax)for more than a year from family-practice physicians for"anxiety with panic attacks" and depression, the plaintiffconsulted clinical psychologist Peter J. Ippoliti, Ph.D., foradditional evaluation and treatment. Record at 182-85 (reportdated February 19, 1999); see also, e.g., id. at 233, 265,267. Dr. Ippoliti diagnosed the plaintiff as having anxietydisorder NOS [i.e., non-specific], depressive disorder NOS anda "GAF," or global assessment of functioning, score of 60. 184.2 He also provisionally diagnosed the plaintiff assuffering from "personality traits or coping style effecting[sic] medical condition." Id. Dr. Ippoliti, who judged theplaintiffs prognosis to be "fair," id. at 185, continued totreat him through at least November 1999, id. at 285-89.

After reviewing Dr. Ippoliti's February 1999 report, twonon-examining Disability Determination Services ("DDS")consultants concurred that the plaintiff suffered from mentalimpairments, but both judged those impairments to be non-severe.See id. at 205-13 (report dated April 16, 1999 by BrendaSawyer, Ph.D.); 268-76 (report dated July 19, 1999 by David R.Houston, Ph.D.). Dr. Sawyer did not mention Dr. Ippoliti's GAFfinding; Dr. Houston noted it without comment. See generallyid.

In his decision, the administrative law judge summarized Dr.Ippoliti's findings, including that concerning GAF. Id. at1516. He then added, "Individuals with this GAF [of 60] aredescribed as having moderate symptoms (e.g., flat affect andcircumstantial speech, occasional panic attacks), or moderatedifficulty in social, occupational, or school functioning (e.g.,few friends, conflicts with co-workers)". Id. at 16.3Nonetheless, he ultimately concluded:

The undersigned finds that credibility is a problem in this case and agrees with the assessments by DDS (Exhibits 14F and 15F) that . . . although there is evidence of an anxiety disorder with some dysphoria, the claimant's impairments are not severe. The undersigned has completed the attached Psychiatric Review Technique Form (PRTF) to reflect these conclusions.


The plaintiff makes three basic points concerning theadministrative law judge's treatment of his mental impairments:(i) it is "impossible to reconcile the ALJ's crediting Dr.Ippoliti's report and GAF of 60 (moderate impairments) with hiscompletion of the PRT[,]" (ii) Dr. Ippoliti's evaluation wasimproperly dismissed on the basis of findings concerning theplaintiffs credibility, and (iii) the finding of non-severitywas not supported by any evidence of record. Statement of Errorsat 2.

None of these points carries the day. The plaintiff overstateshis case in suggesting that the administrative law judge"credit[ed]" Dr. Ippoliti's report. The administrative law judgesimply summarized the Ippoliti report, then went on to makeclear that he agreed with the assessments of the DDS consultants(Drs. Sawyer and Houston). See Record at 15-16. In any event,the plaintiff does not cite, nor can I find, authority for theproposition that a GAF of 60 is inherently inconsistent with afinding of non-severe mental impairment.4 The DSM-IVdefinition makes clear that such a rating can mean either that aperson has moderate symptoms or moderate difficulty in social,occupational or school functioning. Thus, moderate symptoms donot necessarily result in moderate deficits in occupational andsocial functioning. Tellingly, neither of the two DDSpsychological experts (Drs. Sawyer and Houston) perceived theGAF of 60 as inconsistent with their determination that theplaintiffs mental impairment was non-severe.

Nor did the administrative law judge improperly dismiss Dr.Ippoliti's findings on the basis strictly of his assessment ofthe plaintiffs credibility. Rather, he adopted the findings ofDrs. Sawyer and Houston, which he deemed consistent with hisview of the evidence overall, including his findings concerningcredibility. Finally, the plaintiff errs in suggesting that noevidence of record supports the administrative law judge'sconclusion of non-severity; the PRTFs of the DDS consultants(Drs. Sawyer and Houston) clearly do.

B. Medication Side Effects

In his second and final claim of error, the plaintiff assertsthat the administrative law judge erred by ignoring the issue ofthe side effects of his medication, which was raised at hearingand supported by medical record of evidence. Statement of Errorsat 3. I agree.

At hearing, the plaintiffs representative stated that theplaintiff suffered side-effect-related difficulties withanti-anxiety medications and that a current medication,Trazodone, made him "very groggy in the morning." Record at310-11. The record contains some corroboration for this claim.Thomas Frey, M.D., reported that during a so-called "stage I"exercise test held on February 2, 1999, the plaintiffdemonstrated a "moderate reduction" in exercise test levelachieved, "most likely . . . reflect[ing] his underlying anxietyand depressive illnesses" but also possibly "a result ofmedication side effects." Id. at 226. In addition, impartialmedical expert Charles O. Tingley, Jr., Ph.D., testified athearing that long-term use of benzodiazepams such as Valium hasa tendency to cause depression in some people, and that in theplaintiffs case, "I think the complicated factor is themedication problem which is the problem of reaction to SSRIs andmaybe dependence on benzos. That may be complicating thispicture a bit, relating to energy, stamina issues, relating tomood disturbance, related to possible dependence of the benzos.That's my concern." Id. at 328-29.

Given that the plaintiff pressed a colorable claim that hesuffered side effects seemingly of a "severe" nature for Step 2purposes, "[a]t the very least, the administrative law judgeshould have made a finding on [the plaintiffs] claim regardingside effects, making it possible for a reviewing tribunal toknow that the claim was not entirely ignored." Figueroa v.Secretary of Health, Educ. & Welfare, 585 F.2d 551, 554 (1stCir. 1978).

II. Conclusion

For the foregoing reasons, I recommend that the decision ofthe commissioner be VACATED and the cause REMANDED withinstructions to reevaluate (with such additional evidencetaking, if any, as the commissioner may deem necessary) thequestion whether, in view of the plaintiffs claimed side effectsof medication, his impairments are non-severe for Step 2purposes. I further recommend that the commissioner beinstructed to continue the sequential-evaluation if, uponreevaluation, those impairments are found to be severe.


A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommendeddecisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for whichde novo review by the district court is sought, together with asupporting memorandum, within ten (10) days after being servedwith a copy thereof. A responsive memorandum shall be filedwithin ten (10) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiverof the right to de novo review by the district court and toappeal the district court's order.

1. This action is properly brought under 42 U.S.C. § 405(g)and 1383(c)(3). The commissioner has admitted that the plaintiffhas exhausted his administrative remedies. The case is presentedas a request for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to tile anitemized statement of the specific errors upon which he seeksreversal of the commissioner's decision and to complete and filea fact sheet available at the Clerk's Office. Oral argument washeld before me on August 8, 2002, pursuant to LocalRule 16.3(a)(2)(C) requiring the parties to set forth at oralargument their respective positions with citations to relevantstatutes, regulations, case authority and page references to theadministrative record.

2. A GAF score represents "the clinician's judgment of theindividual's overall level of functioning." American PsychiatricAss'n, Diagnostic and Statistical Manual of Mental Disorders32 (4th ed., text rev. 2000) ("DSM-IV-TR"). The GAF score istaken from the GAF scale, which "is to be rated with respectonly to psychological, social, and occupational functioning."Id. The GAF scale ranges from 100 (superior functioning) to 1(persistent danger of severely hurting self or others,persistent inability to maintain minimal personal hygiene, orserious suicidal act with clear expectation of death). Id. at34.

3. The administrative law judge provided no citation for thisproposition, nor do I find it anywhere in the Record. However,counsel for the plaintiff correctly points out that it derivesfrom the DSM-IV. See Statement of Errors at 1-2; DSM-IV-TR at34.

4. A mental impairment generally is considered non-severe forpurposes of Step 2 if the degree of limitation in threefunctional areas-activities of daily living, social functioning,and concentration, persistence or pace — is rated as "none" or"mild" and there have been no episodes of decompensation.20 C.F.R. § 404.1520a(d)(1), 416.920a(d)(1).

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